[Cite as State v. Norman,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2014-02-033

: OPINION - vs - 11/17/2014 :

BRANDYN M. NORMAN, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 13CR29142

David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee

Thomas W. Kidd, Jr., P.O. Box 231, Harveysburg, Ohio 45032, for defendant-appellant

HENDRICKSON, P.J.

{¶ 1} Defendant-appellant, Brandyn M. Norman, appeals from his conviction and

sentence in the Warren County Court of Common Pleas for the illegal cultivation of

marijuana, trafficking in marijuana, possession of criminal tools, and possession of drugs.

I. FACTS

{¶ 2} On April 5, 2013, probation officer Mary Velde, her supervisor, Bruce Snell, and

Hamilton Township Police Officer Darcie Workman went to probationer Bradley Andre's Warren CA2014-02-033

house in Maineville, Ohio to conduct a search of the premises after receiving a report that

Andre was in violation of the terms of his probation by having firearms and marijuana plants

in his home. Andre lived in a single family, two-story home located in a residential

neighborhood. Upon entering Andre's home, Velde and Workman detected a strong odor of

fresh marijuana. Velde's search of the main floor and upper floor of Andre's home did not

uncover any marijuana or firearms. When Velde went to search the basement of Andre's

home, she was informed by Andre that he was currently renting the basement out to two

people, appellant and Henry Hartsock. The door to the basement was secured by both a key

lock and by an additional number-pad activated bolt lock. Andre claimed he did not have a

key or know the combination code to open the locks to the basement. At this time, Andre

admitted that he had "stuff" he kept downstairs, including a gun safe. Andre claimed he did

not know whether or not there were any guns in the safe.

{¶ 3} While Andre was informing Velde and Workman that he could not open the

basement door, one of the basement residents, Hartsock, arrived at the premises. After

questioning by Velde, Hartsock admitted there was marijuana in the basement, but he

refused to consent to a search of the basement and refused to open the basement door.

The whereabouts of appellant were unknown at this time.

{¶ 4} Eventually, Velde decided to take the basement door off its hinges in order to

gain access to the basement. Velde, followed by Workman, entered the basement and

found Andre's personal belongings in an open area to the left of the stairs. In addition, Velde

observed marijuana plants and evidence of a grow operation in plain view. At this point in

time, the Hamilton Township Police Department took over the scene and seized over 100

marijuana plants.

{¶ 5} Appellant, who was not at the scene, was later arrested and indicted on the

illegal cultivation of marijuana in violation of R.C. 2925.04(A) (count one) and trafficking in -2- Warren CA2014-02-033

marijuana in violation of R.C. 2925.03(A)(2) (count two), both felonies of the second degree

as the offenses were committed in the vicinity of a juvenile and the amount of the drug

equaled or exceeded 5,000 grams but was less than 20,000 grams. Appellant was also

indicted on the possession of the drug buprenorphine, a schedule III controlled substance, in

violation of R.C. 2925.11(A), a felony of the fourth degree as the amount of the controlled

substance equaled or exceeded the bulk amount but was less than five times the bulk

amount (count three), possession of the drug diazepam, a schedule IV controlled substance,

in violation of R.C. 2925.11(A), a misdemeanor of the first degree (count four), possession of

dangerous drugs in violation of R.C. 4729.51(C)(3), a misdemeanor of the first degree (count

five), and possession of criminal tools in violation of R.C. 2929.24(A), a felony of the fifth

degree (count six).

{¶ 6} In September 2013, appellant moved to suppress the evidence seized from the

basement, arguing that the search of the basement violated his Fourth Amendment rights as

the search occurred without a warrant or consent. A hearing on the motion to suppress was

held on December 18, 2013, at which time the state argued "exigent circumstances" justified

the warrantless search of the basement. The state also argued the search of the basement

was lawful as Andre, pursuant to the terms of his probation, had consented to a search of his

residence, which included the basement of his home where he stored personal belongings.

In support of its position, the state presented testimony from Velde and Workman.

{¶ 7} At the hearing, Velde testified that she has worked as a probation officer for the

Warren County Court for the last ten years. She became Andre's probation officer following

his convictions for domestic violence and operating a vehicle while under the influence of

alcohol. Due to his domestic violence conviction, Andre was prohibited by law from

possessing a firearm. Furthermore, as part of Andre's conditions of probation, Andre was to

(1) refrain from the commission of any criminal offense, (2) not use, possess, or distribute

-3- Warren CA2014-02-033

any illegal narcotics, drugs, or controlled substances, and (3) consent to a search of his

person, automobile, or residence at any time. Andre was also required to notify Velde about

any individuals that were living at his residence. As of July 2012, the only individual Andre

indicated was living in his home was his son, Zach. Andre never reported that he rented out

his basement to appellant and Hartsock.

{¶ 8} Velde testified that on April 5, 2013, she and her supervisor met Workman at

Andre's home to conduct a search of the premises after Velde received an anonymous tip

that Andre had firearms and marijuana plants in his basement. Workman arrived at Andre's

residence in uniform and in a marked police cruiser. The three approached Andre's home

and knocked on the front door. Roughly five minutes later, Andre, who had recently

undergone surgery and was in a wheelchair, opened the door. Velde immediately smelled

"an aroma of marijuana."

{¶ 9} Velde testified she searched the main floor and upper floor of Andre's home,

but found nothing suspicious or concerning. While she was searching these two floors,

additional Hamilton Township police officers arrived at the residence. Velde then went to

search the basement of Andre's residence and, at this time, was informed by Andre that he

was renting the basement out to "two guys." Andre did not provide the renters' names or

indicate when their tenancy had begun. At some point, Andre produced a copy of an

"Agreement to Rent or Lease," but Velde stated she never looked at the document.

{¶ 10} The entrance to the basement was on the main floor of the home, in a hallway

separating the kitchen and foyer. Velde testified the door did not have any markings or

apartment numbers on it indicating it was a separate unit. The door was an interior door with

two locks on it. Andre told Velde he did not have a key to the key lock and did not know the

combination to the number-pad lock. Andre then admitted to Velde that he did have some

"stuff," including a gun safe, down in the basement. Andre could not recall whether the gun -4- Warren CA2014-02-033

safe contained firearms.

{¶ 11} While Velde was attempting to gain access to the basement, Hartsock arrived.

Hartsock was "fidgety" and "nervous," and demanded to know why Velde was attempting to

get in the basement. Upon questioning, Hartsock admitted he had marijuana downstairs,

and he offered to go down, get it, and bring it up to the officers. Due to concerns about the

officers' safety and the possible destruction of evidence, Hartsock was not permitted to go

downstairs. Velde explained that the whereabouts of appellant, the second individual

residing in the basement, were unknown at this time. Velde "kind of thought maybe he [was]

in the basement * * * [but] wasn't sure." She had concerns about her and the other officers'

safety and with the possible tampering of evidence. Officers at the scene expressed their

belief to Velde that they could not "take the door down, but probation could." Following this

conversation, Velde removed the hinges from the door and gained access to the basement.

Velde described the basement as a large open area, with a kitchen, a bathroom, and a

separate bedroom. Once Velde entered the basement, she immediately saw Andre's

belongings grouped together in an area to the left of the stairs. Velde testified that numerous

marijuana plants and grow lights were also plainly visible upon entering the basement.

{¶ 12} On cross-examination, Velde admitted that prior to taking the basement door off

its hinges, she did not know whether appellant or anyone else was in the basement. Velde

had not heard any noises or "shouts" coming from the basement and had not observed

anyone entering or exiting the basement. Although there was a concern for officer safety and

the possible destruction of evidence, Velde personally "didn't really think that there was

anyone in the basement, just for the fact that the door was locked on the outside." She

stated, "I just figured it was locked, so how could somebody get out if it was locked, you

know, to myself, I didn't think anybody was down there."

{¶ 13} Workman also testified about the events that occurred on April 5, 2013. -5- Warren CA2014-02-033

Workman testified that she was dispatched to Andre's home as backup for Velde. Upon

arriving at the residence and being informed of possible firearms in the home, Workman

requested backup. Three additional officers arrived at Andre's house while Velde conducted

a search of the residence.

{¶ 14} Workman testified she accompanied Velde into Andre's house and, once inside

the home, immediately smelled a strong odor of fresh marijuana. The fact that marijuana

was present in the residence was later admitted to and verified by Hartsock. Hartsock's

arrival at the residence and his subsequent admission to possessing marijuana in the

basement caused Workman to become concerned about appellant's location. She believed

it was possible appellant was in the basement, where she had been told firearms were

located. She was also concerned that if appellant was in the basement, he could be

destroying evidence.

{¶ 15} Workman testified that Velde made the decision to take down the basement

door. She explained that prior to Velde's actual removal of the door, Workman's superior

officer, Lieutenant Johnson, advised Velde that because it was her decision to go downstairs,

Hamilton Township police officers could not help take the door down. Once the basement

door was removed, Workman followed Velde into the basement as backup. She immediately

saw the marijuana plants and grow operation and, thereafter, the Hamilton Township Police

Department took over the scene.

{¶ 16} On cross-examination, Workman admitted that prior to the removal of the

basement door, she had not heard any noise coming from the basement. However, she

stated that she had reason to believe someone was in the basement as only one of the two

individuals residing in the basement had been accounted for. She also stated that her "sole

reason" for going down into the basement with Velde was to "provide backup."

{¶ 17} Following Workman's testimony, the defense called Hartsock and Andre as -6- Warren CA2014-02-033

witnesses. Hartsock testified he and appellant had entered into a rental agreement with

Andre which required the two men to pay Andre one-half of the monthly utilities for the

house, which was approximately $600 to $700 a month, in exchange for use of the

basement. Hartsock considered the basement a separate residence, accessible only by

himself and appellant as they were the only two individuals with keys to the key lock and the

combination to the number-pad lock.

{¶ 18} Hartsock stated he knew Andre was on probation. He also testified that Andre

knew Hartsock and appellant were growing marijuana in the basement as Andre had

observed the grow lights, grow soil, and filtration system being carried into the basement.

Although Andre knew about the grow operation, he never went down into the basement.

Further, Hartsock explained that although Andre had "various little items that were of no

significance" in the basement, as well as larger, heavier items that could not be physically

moved out of the basement, Andre never came downstairs to use or access these items.

The larger items that Andre stored downstairs included a pinball machine, refrigerator,

dresser, and gun safe.

{¶ 19} With respect to the events of April 5, 2013, Hartsock testified that he and

appellant were in the basement when Velde, Workman, and Snell arrived at Andre's

residence. The two men climbed out of a window in the basement and went around the back

of the home to avoid detection. Hartsock testified that he and appellant did not normally use

the window to enter or leave the basement. Hartsock returned to the home while it was being

searched by Velde. At this time, Hartsock admitted there was marijuana in the basement.

He refused, however, to open the basement door or to consent to a search of the basement.

{¶ 20} Andre was next to testify. He stated that Hartsock and appellant had "exclusive

use" of the basement area pursuant to their rental agreement. Andre stated the basement

door had two locks on it, and he did not have a key to the key lock or know the combination -7- Warren CA2014-02-033

to the number-pad lock. He also testified that he was unaware of the marijuana grow

operation in the basement and stated he "never" went down into the basement.

{¶ 21} After receiving the foregoing testimony, the trial court took appellant's motion to

suppress under advisement. On January 2, 2014, the trial court issued a decision denying

appellant's motion. The trial court did not address the state's exigent circumstances

argument, but rather determined that the search of the basement was lawful given Andre's

actual consent, or apparent authority to consent, to the search. In so holding, the court

found, in relevant part, the following:

[T]he facts of this case are somewhat different from a standard landlord-tenant relationship. At least one of the tenants— Hartsock—knew Andre was on probation. Therefore, he has a diminished expectation of privacy in the residence. Second, the landlord-tenant relationship is suspect. Andre knew the marijuana grow operation was in the basement. He saw them bring it in, and there was an understanding between Andre, Hartsock, and the [appellant] that the utilities would be exorbitant, in no small part due to the grow operation. Third, [Andre] maintained personal property in the basement, specifically including the gun safe which was the object of Officer Velde's search. Based on this evidence, the court finds * * * Andre had the actual authority to consent to the search and did consent.

Even assuming, arguendo, Andre did not have actual authority to consent, the Court finds he possessed the apparent authority to do so. A warrantless entry is valid if the police reasonably believe, although incorrect, that the person giving consent possessed common authority over the premises. * * * The Court finds that Officer Velde's observations, as viewed against an objective standard, are sufficient for a person of reasonable caution to believe Andre had authority over the premises.

{¶ 22} Following the trial court's denial of his motion to suppress, appellant entered a

no contest plea on all counts included in the indictment. The trial court sentenced appellant

to three years of community control and imposed a $7,500 mandatory fine.

{¶ 23} Appellant appealed, raising two assignments of error.

II. ANALYSIS

-8- Warren CA2014-02-033

A. Motion to Suppress

{¶ 24} Assignment of Error No. 1:

{¶ 25} THE TRIAL COURT ERRED IN DENYING [APPELLANT'S] MOTION TO

SUPPRESS.

{¶ 26} In his first assignment of error, appellant argues the trial court erred by denying

his motion to suppress. Specifically, appellant contends the trial court erred when it found

Andre's consent or apparent authority to consent justified the warrantless search of the

basement. The state, on the other hand, contends the trial court appropriately denied

appellant's motion to suppress as the record reflects that Velde had reasonable grounds to

believe Andre had violated the terms of his probation by possessing marijuana and firearms

in his basement. The state further argues that Andre had common authority, or appeared to

have such authority, over the basement so that his consent to a probation search

encompassed the basement. Alternatively, the state argues that even if Andre lacked the

authority to consent to the search of the basement, Velde and Workman's actions in entering

the basement without a warrant were lawful pursuant to the exigent circumstances exception

to the warrant requirement.

{¶ 27} Our review of a trial court's denial of a motion to suppress presents a mixed

question of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-

Ohio-3353, ¶ 12. Acting as the trier of fact, the trial court is in the best position to resolve

factual questions and evaluate witness credibility.

Therefore, when reviewing the denial

of a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if

they are supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No.

CA2005-03-074,

. "An appellate court, however, independently

reviews the trial court's legal conclusions based on those facts and determines, without

deference to the trial court's decision, whether as a matter of law, the facts satisfy the -9- Warren CA2014-02-033

appropriate legal standard." Cochran at ¶ 12.

1. Probation Search

{¶ 28} The Fourth Amendment to the United States Constitution assures the "right of

the people to be secure in their * * * houses * * * against unreasonable searches and

seizures." "[S]earches and seizures inside a home without a warrant are presumptively

unreasonable." Payton v. New York,

,

(1980). However,

because the ultimate touchstone of the Fourth Amendment is reasonableness, the warrant

requirement is subject to certain exceptions. Katz v. United States,

,

(1967). One recognized exception to the warrant requirement occurs within the

context of a probation search. United States v. Knights,

,

(2001).

Under the probation search exception, "[w]hen an officer has reasonable suspicion that a

probationer subject to a search condition is engaged in criminal activity, there is enough

likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly

diminished privacy interests is reasonable."

. See also R.C. 2967.131(C)

(authorizing a probation officer to conduct a warrantless search of a probationer's person or

home if the officer has "reasonable grounds" to believe the probationer failed to abide by the

law or by the terms of his probation); State v. Cowans,

(1999)

(recognizing "a probation officer may search a probationer's home without a warrant and

upon less than probable grounds").

{¶ 29} Another recognized exception to the warrant requirement exists when an

individual consents to a search. Schneckloth v. Bustamonte,

,

(1973) ("a search conducted pursuant to a valid consent is constitutionally

permissible"); United States v. Drayton,

,

(2002); State v.

Comen,

(1990). The Ohio Supreme Court has recognized that

probationers and parolees may validly consent in advance to warrantless searches in - 10 - Warren CA2014-02-033

exchange for the opportunity to avoid service of a prison term or to shorten a prison term.

State v. Benton,

(1998). "A warrantless search performed pursuant

to a condition of [probation] requiring a [probationer] to submit to random searches of his or

her person, motor vehicle, or place of residence by a [probation] officer at any time is

constitutional" as a consent search.

at syllabus. See also Griffin v. Wisconsin,

,

(1987); State v. McCain,

,

(4th

Dist.) (finding that "[t]here is no material difference between probationers and parolees with

regard to constitutional guarantees").

{¶ 30} In the present case, appellant concedes that a warrantless search of a

probationer is "generally valid and not an infringement of the Fourth Amendment." Appellant,

therefore, does not dispute the lawfulness of Velde and Workman's initial entry into Andre's

home or Velde's subsequent search of the main and upper floors of the home. Rather,

appellant's dispute arises with Velde's decision to force entry into the basement after being

informed that the basement had been leased to appellant and Hartsock. Appellant contends

that the basement was a "separate leasehold" or unit and that Andre, in his role as landlord,

could not consent to a search of this separate unit. Appellant further asserts that even if the

basement was not treated as a "separate leasehold," Andre could not have consented to a

search of the area because Andre lacked common authority over the basement.

a. Landlord-Tenant Relationship

{¶ 31} Appellant is correct in his assertion that a landlord cannot validly consent to the

search of a tenant's apartment for Fourth Amendment purposes. See Chapman v. United

States,

,

(1961); State v. Callan, 8th Dist. Cuyahoga No. 95310,

. However, where a homeowner rents out a room or rooms in his or

her residence to another, the homeowner-landlord retains the right to consent to a search of

the common areas shared by all residents. See State v. Butts, 2d Dist. Montgomery No. - 11 - Warren CA2014-02-033

22105,

("[w]hile a landlord cannot consent to the search of a tenant's

apartment, the landlord may consent to the search of common areas"); State v. Chuey, 9th

Dist. Medina No. 2937-M,

, *3-6 (finding the owner of a boarding house

could not consent to a search of bedroom rented out by another, but could consent to a

search of the common areas used jointly by the inhabitants).

{¶ 32} In the present case, the trial court recognized that Hartsock and appellant had

not entered into a "standard landlord relationship." Implicit in the trial court's decision

denying the motion to suppress was that Andre, appellant, and Hartsock were cotenants

residing together in the same unit, albeit in separate areas. The evidence presented at the

motion to suppress hearing supports this finding. Testimony from the state demonstrated the

residence was a single family home with only one address and one mailbox. There was no

separate, outside entrance into the basement. Rather, the only entrance to the basement

was located on the main floor of the residence. To enter the basement, an individual had to

first enter Andre's home, walk through the hallway separating the kitchen and foyer, and

open an interior door that had steps leading down into the basement. Given these facts, we

find that the trial court did not err by treating Andre, Hartsock, and appellant as cotenants

residing together under one roof rather than treating the basement as a separate unit.

{¶ 33} As Andre, Hartsock and appellant were cotenants residing in the same home,

the issue becomes whether Andre's consent to search, as a condition of his probation,

extended into the basement to authorize a warrantless search of the area.

b. Cotenant Relationship

{¶ 34} Although the United States Supreme Court has not considered the issue of a

cotenant's consent to search within the context of a probation search, the Supreme Court has

held that a warrantless search of a residence is lawful where consent has been obtained

from either (1) a fellow occupant who shares common authority over property, when the - 12 - Warren CA2014-02-033

suspect is absent, or (2) from a co-occupant whom the police reasonably, but erroneously,

believe to possess shared authority as an occupant. See United States v. Matlock,

,

(1974); Illinois v. Rodriguez,

,

(1990); Georgia v. Randolph,

,

(2006).

i. Actual Authority to Consent

{¶ 35} "[T]he consent of one who possesses common authority over premises or

effects is valid as against the absent, nonconsenting person with whom that authority is

shared."

. Common authority is not to be implied from a mere property

interest, but from "mutual use of the property by persons generally having joint access or

control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants

has the right to permit the inspection in his own right and that the others have assumed the

risk that one of their number might permit the common area to be searched."

.

The burden of establishing that a third party possesses common authority to consent to a

search rests with the state. State v. McCartney, 12th Dist. Clinton No. CA2003-09-023,

, citing

.

{¶ 36} In the present case, we find that the trial court erred as a matter of law in

determining that Andre had common authority over the basement. The evidence presented

at the hearing demonstrated that although Andre owned the residence, he had entered an

agreement to lease the basement to appellant and Hartsock beginning in January 2013,

three months before the search at issue. As the trial court noted, the lease agreement

entered into by the parties called for Hartsock and appellant's "exclusive use" of the

basement in exchange for payment of half of the monthly utility bills. Further, even though

Andre stored personal property in the basement that was too heavy to move, including the

gun safe, there was no indication that Andre was using such property or that he could access

the property without the permission of appellant or Hartsock. In fact, Hartsock and Andre - 13 - Warren CA2014-02-033

both testified that Andre not only never went into the basement, but Andre was also

physically incapable of entering the basement as he lacked a key to the key lock and the

combination to the number-pad lock. Based on these facts, we conclude the state failed to

establish that Andre had joint access or control for most purposes over the basement.

Consequently, we find that Andre could not provide actual consent to a search of the

basement.

{¶ 37} We must, therefore, determine whether Andre appeared to have common

authority over the basement area.

ii. Apparent Authority to Consent

{¶ 38} As we have previously recognized, "[e]ven if a third party does not possess

actual common authority over the area that was searched * * * the Fourth Amendment is not

violated if the police relied in good faith on a third party's' apparent authority to consent."

McCartney,

, citing Rodriguez

. However, the mere

existence of a statement of consent from someone purportedly having authority over the

premises is not always enough. See

("[e]ven when the invitation [to enter

and search] is accompanied by an explicit assertion that the person lives there, the

surrounding circumstances could conceivably be such that a reasonable person would doubt

its truth and not act upon it without further inquiry"). A search consented to by a third party

without actual authority over the premises is valid only if the officer could reasonably

conclude from the facts available that the third party had authority to consent to the search.

;

. Whether apparent authority existed must "be judged

against an objective standard: would the facts available to the officer at the moment . . .

'warrant a man of reasonable caution in the belief' that the consenting party had authority

over the premises."

, quoting Terry v. Ohio,

,

(1968). - 14 - Warren CA2014-02-033

{¶ 39} Here, given the facts surrounding Velde's attempt to enter the basement, we

find that a reasonable person would have doubted Andre's right to consent to the search of

the basement. At the time Velde decided to make a warrantless entry into the basement, the

following facts were before her: (1) Andre, the homeowner, was on probation and had

consented to warrantless searches of his residence; (2) Andre had not provided prior

notification that anyone other than his son was living in his residence, as required by the

terms of his probation; (3) Andre now claimed to have leased the basement out to two

individuals, but he did not indicate who the two men were or when their tenancy had begun;

(4) Andre was able to produce a written lease to the basement; (5) Andre admitted to having

some "stuff," including a gun safe in the basement; (6) Andre claimed he did not have a key

to the key lock or know the combination to the number-pad lock and was therefore unable to

open the basement door; and (7) Hartsock, one of the men claiming to be a tenant of the

basement, refused to consent to a search of the basement. A "man of reasonable caution"

would not have relied on Andre's consent, per the terms of his probation, as authoritative

under these circumstances. See Rodriguez,

; U.S. v. Kimber,

(6th Cir. 2010). Andre's statements that he had rented out the basement and could

not open the locks to the basement door combined with his production of a written lease, and

the presence of one of the cotenants on the scene, created a reason to doubt Andre's

authority to consent to a search of the basement. Velde, therefore, should not have acted

without further inquiry.

. Had Velde made further inquiries into the tenancy

situation, she would have discovered that Andre lacked common authority over the basement

and, therefore, could not render valid consent.

{¶ 40} We therefore find that the trial court erred as a matter of law in determining

Andre appeared to possess the authority to consent to a search of the basement. Under the

facts of this case, Velde could not reasonably conclude that Andre had common authority - 15 - Warren CA2014-02-033

over the basement.

iii. Cotenant's Assumption of the Risk

{¶ 41} In concluding that Andre did not have actual or apparent authority to consent to

a search of the basement we expressly reject the state's argument that appellant, by

choosing to live in a home owned by a probationer, assumed the risk that a probation search 1 would encompass all areas of the residence. Rather, we find that that there are limits on

what areas a cotenant, regardless of his probation status, may consent to have searched.

See Matlock,

; Rodriguez,

; Randolph,

. We hold that

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.

{¶ 42} Other courts considering this issue have reached a similar result. See People

v. Woods,

,

(Cal. 1999); State v. Johnson,

(Utah

1987). In Woods, the Supreme Court of California reversed a lower court's decision

suppressing evidence obtained against two cotenants who resided in the same home as a

probationer. The probationer, Loza, had agreed as a condition of her probation to submit her

residence, a one-bedroom home, to warrantless searches. Woods at 671. During a

probation search, officers found Loza's two roommates, the cotenants Woods and Benson,

inside the bedroom with methamphetamine and marijuana. Id. at 672. The California court,

citing the United States Supreme Court's decision in United States v. Matlock,

,

(1974), found that Loza's consent to a warrantless search per the terms of

her probation provided valid consent for the search of the residence as "consent [was] given

1. Although the record does not establish that appellant had personal knowledge of Andre's probation status, whether or not appellant knew of Andre's probation status is immaterial to the issue at hand. Regardless of a cotenant's probation status, an individual living with others maintains an expectation of privacy in those areas of the residence in which he or she retains exclusive use. - 16 - Warren CA2014-02-033

by one person with common or superior authority over the area to be searched." Woods at

675-676. The court specifically held:

[W]hether the purpose of the search is to monitor the probationer or to serve some other law enforcement purpose, or both, the search in any case remains limited in scope to the terms articulated in the search clause * * * and to those areas of the residence over which the probationer is believed to exercise complete or joint authority. United States v.

415 U.S. at pp. 170-171. * * *

***

[O]ur holding is not intended to legitimize unreasonable searches with respect to nonprobationers who share residences with probationers. In all cases, a search pursuant to a probation clause may not exceed the scope of the particular clause relied upon. * * * Moreover, officers generally may only search those portions of the residence they reasonably believe the probationer has complete or joint control over. * * * That is, unless the circumstances are such as to otherwise justify a warrantless search of a room or area under the sole control of a nonprobationer (e.g., exigent circumstances), officers wishing to search such a room or area must obtain a search warrant to do so.

(Emphasis added.) Id. at 681-682.

{¶ 43} Similarly, in Johnson, the Supreme Court of Utah relied on the principles of law

set forth in United States v. Matlock in holding that "[w]hen a parolee lives with a nonparolee

* * * the cotenancy restricts, to some degree, the extent of a permissible consent search.

The scope of the consent impliedly given by a cotenant is limited to those parts of the

premises where the tenants possess 'common authority over or other sufficient relationship

to the premises or effects sought to be inspected.'" Johnson,

, quoting

Matlock,

. Because law enforcement found evidence of a crime in a common

area, a hall closet, the court determined that the search was lawful and did not violate the

non-parolee cotenant's right of privacy. Id. at 1074.

{¶ 44} While the rationales and holdings expressed in Woods and Johnson are not

- 17 - Warren CA2014-02-033

binding on this court, we find them persuasive. These cases further support our conclusion

that Andre's probation consent to a warrantless search of his residence did not encompass

the basement as he was not known to occupy or have joint control over the area.

{¶ 45} Accordingly, for the reasons set forth above, we find that the trial court erred in

denying appellant's motion to suppress on the basis that Andre consented, or appeared to

have the authority to consent, to the warrantless search of the basement.

2. Exigent Circumstances

{¶ 46} Having determined that Andre's consent to a search of his residence pursuant

to the terms of his probation did not justify the warrantless search of the basement, we turn to

the state's argument that the search was lawful under the exigent circumstances exception to

the warrant requirement. Specifically, the state argues the warrantless entry was justified as

the police officers had probable cause to believe criminal activity had occurred in the

basement and there was a "real likelihood" that evidence of the criminal activity was in

danger of being destroyed.

{¶ 47} One of the recognized exceptions to the Fourth Amendment's warrant

requirement is the exigent circumstances exception, where "the exigencies of [a] situation

make the needs of law enforcement so compelling that the warrantless search is objectively

reasonable under the Fourth Amendment." Mincey v. Arizona,

,

(1978). The exigent circumstances exception justifies a warrantless entry into a

residence in certain situations, including when "immediate entry is necessary to stop the

imminent loss, removal, or destruction of evidence or contraband." State v. Karle,

(1st Dist. 2001), citing Ker v. California,

,

(1963). "For the exigent circumstances exception to apply, the state must establish both

probable cause and 'some real likelihood that the evidence is in danger of being moved or

destroyed in the time that it would take to get a warrant.'" State v. Christopher, 12th Dist. - 18 - Warren CA2014-02-033

Clermont No. CA2009-08-041,

, ¶ 32, quoting State v. Hatfield, 4th Dist.

Ross No. 98CA2426,

, *5 (Mar. 11, 1999).

a. Probable Cause

{¶ 48} Probable cause is a "fluid concept" and must be determined under the totality of

the circumstances. Maryland v. Pringle,

,

(2003).

"Probable cause exists where 'the facts and circumstances within [the officers'] knowledge

and of which they had reasonably trustworthy information [are] sufficient in themselves to

warrant a man of reasonable caution in the belief that' an offense has been or is being

committed." State v. Enyart, 10th Dist. Franklin Nos. 08AP-184 and 08AP-318, 2010-Ohio-

5623, ¶ 19, quoting Brinegar v. United States,

,

(1949).

To determine whether probable cause exists, a court must examine the "totality of the

circumstances" and make a "practical, commonsense decision whether, given all the

circumstances there was a fair probability that contraband or evidence of a crime would be

found in a particular place." Christopher at ¶ 16, quoting Illinois v. Gates,

,

(1982). Further, "[p]robable cause requires only a probability or substantial

chance of criminal activity, not an actual showing of such activity." State v. Wilson, 12th Dist.

Clinton No. CA2006-03-008,

.

{¶ 49} Here, probable cause for the entry into the basement existed as Velde had

received information that there were firearms and marijuana plants in the basement, Velde

had been advised by her probationer that a gun safe that may or may not contain firearms

was down in the basement, Velde and Workman smelled a strong odor of fresh marijuana

upon entering Andre's residence, and Hartsock admitted to law enforcement he had

marijuana downstairs in the basement. These facts, when taken together, provided Velde

and Workman with probable cause to believe that contraband or evidence of a crime would

be found in the basement. - 19 - Warren CA2014-02-033

{¶ 50} The issue therefore becomes whether there was a "real likelihood" that the

evidence in the basement was in danger of being destroyed in the time it would have taken

law enforcement to obtain a warrant.

b. Destruction of the Evidence

{¶ 51} "Whether exigent circumstances are present is determined through an objective

test that looks at the totality of the circumstances confronting the police officers at the time of

the entry." Enyart,

at ¶ 21, citing United States v. MacDonald,

(2d Cir. 1990). "A warrantless entry to prevent the destruction of evidence is

justified if the government demonstrates: '(1) a reasonable belief that third parties are inside

the dwelling; and (2) a reasonable belief that these third parties may soon become aware the

police are on their trail, so that the destruction of evidence would be in order.'"

quoting

United States v. Lewis,

(6th Cir. 2000). Other factors a court may consider

in determining whether exigent circumstances existed include the degree of urgency, the time

it would take to get a warrant, and the ready destructibility of the evidence. State v. Serna,

12th Dist. Butler No. CA92-12-245,

, *1 (Aug. 30, 1993).

{¶ 52} Because marijuana and other narcotics are "easily and quickly hidden or

destroyed," the Ohio Supreme Court has recognized that there are times where a

"warrantless search may be justified to preserve evidence." State v. Moore,

(2000). However, "[n]otwithstanding the ease in which narcotics can be destroyed, a

warrantless entry into the home of a suspected drug trafficker, effected without an objectively

reasonable basis for concluding that the destruction of the evidence is imminent, does not

pass constitutional muster." United States v. Haddix,

(6th Cir. 2001). The

"mere possibility of the loss or destruction of evidence is an insufficient basis for the

warrantless entry of a house to prevent the destruction of evidence." United States v.

Ukomadu,

(6th Cir. 2001), citing United States v. Radka,

, - 20 - Warren CA2014-02-033

363 (6th Cir. 1990); State v. Hamilton, 9th Dist. Medina No. 2903-M,

, *4

(Aug. 11, 1999). Rather, there must be a "real likelihood" that the evidence is in danger of

being destroyed. Christopher,

, ¶ 32.

{¶ 53} We find that the totality of the circumstances in this case does not support a

finding of exigent circumstances as there was no basis for Velde or Workman to believe, or

even suspect, that there was anyone in the basement or that there was a real likelihood that

the marijuana in the basement was in danger of being destroyed. At the motion to suppress

hearing, both Velde and Workman testified that the whereabouts of appellant were unknown.

Although both Velde and Workman testified it was "possible" appellant was in the basement,

and therefore could have been destroying evidence, neither Velde nor Workman heard any

noise coming from the basement or saw anyone entering or exiting the basement. Velde

admitted that she "didn't really think that there was anyone in the basement." Workman

testified her sole basis for believing someone was down in the basement stemmed from the

absence of the basement's second tenant, appellant, rather than from any noises or 2 observations she made while at the scene.

{¶ 54} We find the facts of the present case are similar to those in United States v.

Lewis,

(6th Cir. 2000). In Lewis, law enforcement had received a tip from a

2. { a} During cross-examination, Workman testified as follows:

{ b} [DEFENSE COUNSEL]: Did you have any reason to think that there was anyone in the basement at that time?

{ c} [WORKMAN]: Well, we were told that two people were living there and we only had one accounted for.

{ d} [DEFENSE COUNSEL]: Did you hear any noises coming from the basement?

{ e} [WORKMAN]: I did not.

{ f} [DEFENSE COUNSEL]: Other than that statement that you just said that there were two people living there, did you have any reason to believe that anyone was home in that basement?

{ g} [WORKMAN]: No.

- 21 - Warren CA2014-02-033

confidential informant that Lewis and his brother Julian were storing and selling narcotics out

of the home they shared in Cleveland, Ohio.

. The informant indicated that Julian

was going to be picking up additional narcotics "down the street" from his house.

.

The officers followed Julian "down the street" and observed him purchasing cocaine from a

third party.

Julian and the third party were arrested and law enforcement went back to

Lewis and Julian's house.

At this time, law enforcement entered the home without a

warrant, later claiming that exigent circumstances justified their warrantless entry and search.

. Inside Lewis' bedroom, the officers found cocaine, drug paraphernalia, and a

firearm.

Lewis, who had been present in the home during the search, was arrested and

charged with possession with intent to distribute crack cocaine and the illegal possession of a

firearm by a convicted felon.

Lewis filed a motion to suppress the evidence, which was

denied by the district court.

. On appeal, the Sixth Circuit reversed the trial court's

decision denying the motion to suppress. The court specifically found:

In this case, the police officers had no reason to believe that third parties were inside the house at the time of the transaction. The informant indicated that there would be a drug transaction outside the house. Although this information was corroborated by the officers surveilling the house, the informant gave no indication that anyone would be in the house at the time of the transaction. The officers saw Julian leave the house. They did not see him or anyone else enter the house. They did not see anyone through a window of the house nor did they hear anything that would indicate the presence of anyone in the house. The officers who entered the house were aware that Julian had been arrested, but they had no knowledge of Lewis's whereabouts and no reason to assume that he was inside the house. The uncorroborated information that Lewis and Julian were partners in a drug business operating out of [the home] does not support the reasonable belief that anyone was home at the time of the transaction.

Without a reasonable belief that there were third parties in the house, the belief that any evidence presumed to be inside the house was in danger of imminent destruction is unfounded.

. - 22 - Warren CA2014-02-033

{¶ 55} Similar to Lewis, in the present case neither the police officers nor Velde had

reason to assume that appellant, the unaccounted for cotenant, was in the basement. The

officers did not see appellant or anyone else enter the house, did not view him through a

window inside the house, and did not hear anything that would indicate his presence in the

basement. As at least four police officers were present on the scene in addition to Velde and

her supervisor, and the means of egress into the basement was limited to a window and the

interior basement door, the officers could have easily secured the premises and sought a

warrant. The fact that it would have been inconvenient or taken some time to obtain the

warrant does not justify the warrantless entry. See State v. Sharpe,

,

(2d Dist.), citing Arkansas v. Sanders,

,

(1979) ("[t]he inconvenience of securing the residence until a warrant could be obtained

[does] not justify the action police took"). Furthermore, and similar to Lewis, the fact that

appellant was actually present in the basement when Velde, Snell, and Workman initially

arrived does not change the analysis. As stated, the inquiry is based upon the objective facts

known to the authorities at the time a warrantless entry is effected, and information acquired

after the entry may not be relied upon to bootstrap an otherwise illegal warrantless search.

The only objective information relied upon to justify the warrantless entry into the basement

was the lack of information as to appellant's whereabouts. This uncertainty does not satisfy

the state's burden of establishing "a reasonable belief that third parties are inside the

dwelling." Lewis,

.

{¶ 56} We further conclude that Velde and Workman's concern with their own and

their fellow officers' safety did not justify the warrantless search of the basement. Although

both Workman and Velde expressed concern over the possibility that an individual may have

been in the basement with access to guns that were possibly being stored in the gun safe,

this concern did not justify a warrantless entry into the basement. It is only when "there is - 23 - Warren CA2014-02-033

positive, specific evidence supporting a reasonable belief that a building contains an

unsecured firearm that could pose a danger to the officers or other members of the public

who are present inside that building or on the scene [that] exigent circumstances * * * may

justify a warrantless entry." (Emphasis added.)

. "[T]he mere fact that a

firearm may be located within a private home is not, by itself, sufficient to create an exigent or

emergency circumstance."

citing United States v. Keys,

(6th

Cir. 2005).

{¶ 57} Here, law enforcement did not know if there was actually a firearm in the

basement. Furthermore, law enforcement had no basis to believe, or even suspect that

anyone was in the basement. The concern that appellant might have been in the basement

and may have had access to a firearm was wholly speculative and presented no emergency

requiring a warrantless entry into the area. See

(concluding that a

warrantless entry to recover a firearm left inside a defendant's home after the defendant had

been arrested and removed from the home was not justified where the officers had no basis

to believe that anyone else was inside the home).

{¶ 58} Accordingly, we conclude that under the facts of this case, where no

emergency necessitating a warrantless entry existed and there was evidence that the

premises could have been secured while a warrant was obtained, the warrantless entry into

the basement was unreasonable. While there was probable cause to believe that marijuana

was in the basement, there was no basis for law enforcement to believe, or even suspect,

that anyone was in the basement or that the marijuana was in danger of being destroyed.

The state, therefore, failed to meet its burden of demonstrating that exigent circumstances

justified the warrantless entry into the basement.

{¶ 59} As the state failed to demonstrate that an exception to the warrant requirement

justified the warrantless search of the basement, we find that the trial court erred by denying - 24 - Warren CA2014-02-033

appellant's motion to suppress. Appellant's first assignment of error is, therefore, sustained.

The judgment of the trial court is hereby reversed and the cause remanded for further

proceedings. On remand, all evidence seized pursuant to the warrantless search of the

basement shall be suppressed.

B. Imposition of Mandatory Fine

{¶ 60} Assignment of Error No. 2:

{¶ 61} THE TRIAL COUNSEL [SIC] ERRED IN SENTENCING THE INDIGENT,

BRANDYN NORMAN, TO A MANDATORY FINE OF $7,500.

{¶ 62} In his second assignment of error, appellant contends the trial court erred by

imposing a $7,500 mandatory fine at sentencing without adequately considering his present

and future ability to pay.

{¶ 63} Given our resolution of appellant's first assignment of error, we find his second

assignment of error moot. See App.R. 12(A)(1)(c).

III. CONCLUSION

{¶ 64} Appellant's conviction and sentence are reversed, and the matter is remanded

for further proceedings consistent with this opinion.

{¶ 65} Judgment reversed and cause remanded.

S. POWELL and M. POWELL, JJ., concur.

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