[Cite as State v. Johnson,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : : Case No. 14CA3618 v. : : DECISION AND ROCKIE LEE JOHNSON, : JUDGMENT ENTRY : Defendant-Appellant. : Released: 12/04/2014

APPEARANCES: Lynn A. Grimshaw, Kenneth W. Porter and Rick L. Faulkner, Wheelersburg, Ohio, for Appellant.

Mark Kuhn, Scioto County Prosecuting Attorney and Jay Willis, Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.

Hoover, J.:

{¶ 1} Rockie Lee Johnson, appellant herein and defendant below, appeals his conviction

and sentence from the Scioto County Court of Common Pleas. Johnson entered a no contest plea

to one count of having a weapon while under a disability, a third degree felony, and one count of

receiving stolen property, a fourth degree felony. The trial court sentenced Johnson to 12 months

in prison. Before he pled no contest to the aforementioned counts, Johnson filed a motion to

suppress based on an alleged illegal search and seizure of the two weapons found in his bedroom.

The weapons were found by police officers searching the residence for a probationer, Paul

Charles. The trial court overruled Johnson’s motion to suppress.

{¶ 2} Here on appeal, Johnson challenges the trial court’s decision to overrule his motion

to suppress. For the reasons set forth below, we find that the State failed to prove Paul Charles

possessed common authority over Johnson’s locked bedroom. Therefore, the validity of the Scioto App. No. 14CA3618 2

search for the probationer did not extend to the bedroom. We find the trial court erred in denying

Johnson’s motion to suppress. The judgment of the trial court is reversed and this cause is

remanded for further proceedings consistent with this opinion.

Procedural and Factual History

{¶ 3} In October 2012, Paul Charles was placed on probation under the supervision of the

Portsmouth Municipal Court. According to paperwork from the Scioto County Department of

Jobs and Family Services, Charles’s address was listed as 260 ½ Egbert Road, Portsmouth, Ohio.

A Portsmouth Municipal Court docket sheet also shows the address for Paul Charles as 260 ½

Egbert Road. Appellant Rockie Lee Johnson and Charles’s mother, Bev Charles, own and reside

at 260 Egbert Road. Both addresses relate to the same residence. During the hearing on

Johnson’s motion to suppress, the existence or legitimacy of the 260 ½ address was a

controversial point.

{¶ 4} According to Johnson, Charles lived in a camper parked in the driveway of the 260

Egbert Road residence. Charles only had access to certain areas inside the house. Johnson

testified that the residence was separated into two sections, the front of the house and the back of

the house. Johnson testified that Charles only had access to the front of the house. Charles was

able to use the restroom facilities in the front part of the residence. In addition, Charles would

receive mail at the 260 Egbert Road residence.

{¶ 5} On March 11, 2013, a detective of the Scioto County Sheriff’s office spotted an

alleged stolen vehicle in the driveway of 260 Egbert Road. Detective Jodi Conkel responded to

investigate the situation. Conkel soon learned that the location was Charles's residence and that

Charles was on probation. The probation office was contacted about the situation. Conkel Scioto App. No. 14CA3618 3

testified that Charles was known to hide from police. When officers arrived at the residence,

Shannon Blaine was present; and he told the officers that Charles had been staying there.

{¶ 6} While these events were unfolding, Bev Charles and appellant Johnson were at the

sheriff’s department on some unrelated matter. Bev Charles and Johnson spoke to Conkel and

consented to a search of the house with the exception of a locked bedroom. The bedroom was

located on the right side, as someone would enter the residence. The door to the bedroom was

locked on the outside with a padlock.

{¶ 7} Despite being granted permission to enter the house, Conkel testified that she and

other officers waited approximately one hour, until the probation department arrived, to enter the

house. Chief Probation Officer Mark Malone testified that first he verified that Paul Charles was

in violation of his probation because he failed to report. After Malone arrived at the house, a

search for Charles began. The probation officers and sheriff deputies searched the premises

including the camper and the garage. After this search was completed, Malone heard sounds

coming from the padlocked bedroom. Malone described these noises as: “scurring around” and

“rough noises.” Conkel testified that she did not hear any noises.

{¶ 8} At that point, Malone testified that he believed somebody was in the room. Malone

asked Shannon Blaine if Paul Charles was in the locked room. Blaine responded that he did not

know. Blaine also told Malone that he did not have a key to the lock. When asked why he

believed Paul Charles might be in the locked bedroom, Malone responded:

“The guy on the couch, Shannon, when I asked is he here, he said, “No’[sic], then

he said, “Well I don’t know. I just woke up.” And then we heard the noise. And

then we were told you can’t search there, which lead [sic] me to believe he was in

that -- that room.” Scioto App. No. 14CA3618 4

Malone then proceeded to gain entry to the locked bedroom by prying the lock out with a

screwdriver. Malone entered the bedroom and saw that a raccoon was inside. The raccoon was

the source of the noises coming from the bedroom.

{¶ 9} Malone testified that the bedroom contained a variety of stuff, specifically

mentioning car stereos. Inside the room, officers also found two firearms underneath the bed.

Johnson was charged with one count of having a weapon while under a disability, a third degree

felony, in violation of R.C. 29.13(A)(3) and one count of receiving stolen property, a fourth

degree felony, in violation of R.C. 2913.51(A) & (C)/ 2923.11. Johnson filed a motion to

suppress the evidence seized during the March 11 search. The trial court overruled Johnson’s

motion. After changing his plea to no contest, Johnson was sentenced to 12 months in prison.

Now, Johnson presents this appeal.

Appellant’s Sole Assignment of Error:

THE TRIAL COURT ERRED AS A MATTER OF FACT AND LAW IN

VIOLATION OF DEFENDANT-APPELLANT’S RIGHTS UNDER THE

FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION,

WHEN THE TRIAL COURT DENIED AND OVERRULED DEFENDANT-

APPELLANT’S MOTION TO SUPPRESS.

{¶ 10} Appellant Johnson argues that this case involves two types of voluntary consents

to search. The first being the probation search allowed because of the probation status of Paul

Charles. The second is the consent given to police officers by Bev Charles and appellant Johnson.

Johnson contends that in both circumstances the consent ended at the padlocked bedroom door.

Johnson also argues that no exigent circumstances existed to justify the search of the bedroom. Scioto App. No. 14CA3618 5

{¶ 11} The State responds that limited consent to search was provided by Johnson in

addition to the blanket consent provided by Paul Charles through his probation status. The State

argues that Paul Charles had the right to enter the residence at 260 Egbert Road for the purpose

of using the restroom, showering and eating among other things. Therefore, the state argues,

regardless of whether he was residing there, Paul Charles had permission to use, occupy and

possess the home at 260 Egbert Rd. and pursuant to R.C. 2951.02(A) that property was subject to

warrantless search by Paul Charles’s probation officer.

Standard of Review

{¶ 12} Our review of a trial court's decision on a motion to suppress presents a mixed

question of law and fact. State v. Burnside,

, 2003–Ohio–5372,

. When considering a motion to suppress, the trial court acts as the trier of fact and is in

the best position to resolve factual questions and evaluate witness credibility.

Accordingly,

we defer to the trial court's findings of fact if they are supported by competent, credible evidence.

Accepting those facts as true, we must independently determine whether the trial court

reached the correct legal conclusion in analyzing the facts of the case.

Fourth Amendment

{¶ 13} The Fourth Amendment to the United States Constitution and Article I, Section 14

of the Ohio Constitution guarantee the right of the people to be free from unreasonable searches

and seizures. See State v. Orr,

,

,

. These

two provisions contain nearly identical language and the Supreme Court of Ohio has interpreted

them as affording the same level of protection.

“[S]earches conducted outside the judicial

process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth

Amendment-subject only to a few specifically established and well-delineated exceptions.” Katz Scioto App. No. 14CA3618 6

v. United States,

,

,

(1967). Once the defendant

demonstrates that he was subjected to a warrantless search or seizure, the burden shifts to the

state to establish that the warrantless search or seizure was constitutionally permissible. See State

v. Roberts,

,

,

; Maumee v. Weisner,

,

(1999); Xenia v. Wallace,

,

(1988), paragraph two of the syllabus.

Warrantless Probation Searches

{¶ 14} The United States Supreme Court has upheld probation searches conducted

pursuant to a condition of probation, provided that a “reasonable suspicion” exists that evidence

of criminal activity can be found in a probationer’s home. State v. Burns, 4th Dist. Highland No.

11CA14,

, ¶ 14 citing United States v. Knights,

,

,

(2001). The Court also explained:

Although the Fourth Amendment ordinarily requires the degree of probability

embodied in the term ‘probable cause,’ a lesser degree satisfies the Constitution

when the balance of governmental and private interests makes such a standard

reasonable. Those interests warrant a lesser than probable-cause standard here.

When 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.

Burns at ¶ 14 quoting Knights,

(citations omitted); see also, State v. Benton,

,

(1998); State v. Sowards, Gallia App. No. 06CA13, 2007–

Ohio–4863; R.C. 2967.131(C). Scioto App. No. 14CA3618 7

{¶ 15} R.C. 2951.02 relates to the supervision of community control. The statute states:

[A]uthorized police officers*** may search, with or without warrant, the person

of the offender, the place of residence of the offender***or other real property

in which the offender has a right, title, or interest or for which the offender has

the express or implied permission of a person with a right, title, or interest to

use *** if the probation officers have reasonable grounds to believe that the

offender is not abiding by the law or otherwise is not complying with the

conditions of the [offender’s community control].

(Emphasis Added).

{¶ 16} This case presents a unique set of circumstances that invoke two intermingling

sets of legal principles. On one hand, as just mentioned, warrantless searches of a probationer’s

home have been upheld if reasonable suspicion exists that the probationer is engaged in criminal

activity. R.C. 2951.02(A) seemingly provides a broad scope in which probation officers can

search, including real property for which an offender has the express or implied permission to

use, occupy, or possess.

{¶ 17} Additionally, this case presents a question of consent, demonstrated by the parties’

arguments. Here, the appellant Johnson objects to a search based upon the consent from a

cohabitant, Paul Charles. In these types of cases, police may have searched a defendant’s

property because of a third party’s consent. See generally U.S. v. Matlock,

,

,

(1974). “A valid consent can be given by one other than a defendant if the

third party granting such consent possessed common authority over or other sufficient

relationship to the premises sought to be searched.” State v. Gibson,

, 2005-

Ohio-6380,

(4th Dist.) (citations omitted). The consent in this case is Scioto App. No. 14CA3618 8

represented by the terms and conditions of Paul Charles's probation, which the State argues

authorized officers to search the padlocked bedroom.

{¶ 18} We have previously addressed an issue where a probationer appealed the validity

of a search of his parents’ home because the search was outside of his consent. Burns, 2012-

Ohio-1529, at ¶ 16. In Burns, probation officers visited the home of the defendant-probationer’s

parents and saw defendant on the back porch. When defendant saw the officers he ran off from

the house. Id. at ¶ 5. An officer found narcotics and money in a flowerpot on the deck of the

home. Id. On appeal the probationer argued that the search was invalid because he could not

consent, via being on probation, to a search of his parents home. Id. at ¶ 16. This Court stated:

While we observe that the foregoing principle [common authority] generally is

invoked when the defendant objects to a search to which a co-occupant consented,

we believe that the same principle may apply when the defendant objects to the

consent search on the basis that he did not own the premises and thus could not

give valid consent. The underlying principle is common authority. In the case at

bar, appellant, as an occupant of the premises, had common authority over the

premises. Because appellant shared the premises with his parents, he had common

authority to consent to a search.

Id. at ¶ 17.

We overruled appellant’s argument and affirmed the trial court’s decision to deny the motion to

suppress.

{¶ 19} Here, the defendant is not the probationer, but a third party whose premises were

searched because of another’s probation status. In Burns, this Court did not consider whether a

probationer living in a house subjects the entire residence to a warrantless search. The subject Scioto App. No. 14CA3618 9

matter of that case was the presence of the defendant on the back porch and the contraband he

left in a nearby potted plant. The specific facts here, do not allow us to follow the specific notion

that “as an occupant of the premises,” one has automatic common authority over all parts of the

residence.

{¶ 20} Next, we consider a case from the Fifth District Court of Appeals. A defendant

objected to a search based upon his girlfriend’s probation status in State v. Karns, 5th Dist.

Fairfield No. 11CA18,

. In Karns, Misty Castle was on probation and living

with her boyfriend, defendant Larry Karns, and his parents. Id. at ¶ 4. After Castle failed to

report as ordered, probation officers went to the residence. Id. at ¶ 9. The officers noticed

security cameras attached to the house along with a TV monitor inside the house displaying the

surveillance images. Id. Mary Karns, mother of the defendant, allowed the officers entry to the

home. Id. at 15. Mrs. Karns told one probation officer that her son (defendant) and Castle lived

in a room across from the entrance door. Id. The door to the room was locked. Id. Mary Karns

told the probation officer that the door was usually locked even when Castle and defendant were

home. Id. The probation officer testified that the door made him suspicious. Id. Mary Karns

offered the officer a coat hanger to pry the door open. Id. The probation officers gained entry to

the room using the coat hanger. Id. Inside the room, officers found what they believed to be

methamphetamine production and use. Id. The trial court upheld the search based upon the

totality of the circumstances and denied defendant’s motion to suppress. Id. at ¶ 25.

{¶ 21} On appeal, the Fifth District Court of Appeals held that “the trial court erred in

finding that there was a reasonable suspicion that Castle was engaged in criminal activity and Scioto App. No. 14CA3618 10

that evidence or contraband connected with that activity was within appellant's locked room.”1

The outcome here is noteworthy, in that the Fifth District Court of Appeals did not determine

that officers had the right to search and ultimately use the findings against the defendant Karns.

While the appellate court found reasonable suspicion did not exist, it also implicitly did not allow

officers to search Karn’s room simply because a probationer shared the dwelling.

{¶ 22} In the case sub judice, the trial court focused on the nature of the 260 Egbert Road

residence. Appellant Johnson testified that the 260 ½ address has existed for eight years. Johnson

explained that the residence is separated into two separate apartments, with the side and back

operating as 260 Egbert Rd., exclusive to him and Bev Charles. Johnson also testified that the

locked bedroom was in this area and that Paul Charles had no possessions in the locked room.

According to Johnson, Paul Charles lived in the camper parked in the driveway, and only entered

the house to shower and use the bathroom. Paul Charles’s address was recorded as 260 ½ Egbert

Rd. on a court docket entry and a document presented at the hearing from the Department of Jobs

and Family.

{¶ 23} However, Deputy Conkel testified that the residence did not appear to be

separated in any way. Officer Malone also testified to the same, and also that he conducted

previous home visits with Paul Charles inside the 260 Egbert Road residence. Officer Charles

also testified that Paul Charles was already in violation of his probation when the events in

question occurred.

1 In a dissenting opinion, Judge Farmer states that she would find that the trial court did not err in denying the motion to suppress. The opinion states that Castle failing to report would provide reasonable grounds for an authorized search pursuant to the United States Supreme Court in Griffin v. Wisconsin,

, 107 S.C.t. 3164,

(1987) and R.C. 2967.131(C). Scioto App. No. 14CA3618 11

{¶ 24} The trial court found the different address to be a scheme to perpetrate welfare

fraud. Johnson did testify that he gave the 260 ½ Egbert Road address to Paul “***because

Children’s Services told him he couldn’t live at the same residence.” According to our standard

of review we must uphold the factual findings of the trial court if supported by credible,

competent evidence.

. Therefore, we will defer to the trial court’s finding

that the addresses were not separate, as appellant Johnson would have this Court believe. Even

accepting this fact, we must still decide if under these facts, the trial court came to a correct legal

decision regarding the motion to suppress.

{¶ 25} In our view, it is clear that probation officers had the reasonable suspicion to

search at least part of the residence at 260 Egbert Road in order to locate Paul Charles. The

reasonable suspicion is provided by Officer Malone’s testimony that Paul Charles failed to report

to his probation officer and a Sheriff Deputy’s observation of a car, suspected to be stolen,

parked in the driveway at the residence. Probation officers therefore had authority to search the

probationer’s “***residence, person, and/or personal possessions,” pursuant to his conditions of

probation. However, the ultimate issue here, is whether the validity of the officers’ search

extended to the padlocked bedroom.

{¶ 26} We find, upon review of the record that the trial court erred in denying Johnson’s

motion to suppress. Even accepting the fact that the 260 and 260 ½ addresses were only used to

perpetrate welfare fraud, the probation search only extends to the probationer’s “residence ***or

other real property in which the offender has a right, title, or interest or for which the offender

has the express or implied permission of a person with a right, title, or interest to use.” Paul

Charles’s status as a probationer and the agreement he signed with the Portsmouth Municipal

Court acts as consent to search his residence. However, like other third parties with respect to a Scioto App. No. 14CA3618 12

separate defendant, Paul Charles must possess “common authority over or other sufficient

relationship to the premises sought to be searched.”

.

{¶ 27} “ ‘Common authority’ rests on the mutual use of the property by persons having

joint access or control for most purposes.” Burns,

, at ¶ 16 quoting Matlock,

, 94 S.C.t. 988,

(1974). As the situation in Karns illustrates, a

defendant does not necessarily waive all of his Fourth Amendment rights simply by living in the

same house or even the same room as a probationer. The State did not provide evidence that Paul

Charles possessed common authority over the padlocked bedroom. The State only proved that

Paul Charles had access to certain portions of the house, a fact upon which Johnson agreed. No

evidence was presented demonstrating that Paul Charles had joint access or control of the

padlocked bedroom.

{¶ 28} Admittedly, this case presents a close question, but the State possesses the burden

to establish that a warrantless search was constitutionally permissible.

.

We believe that the State failed to prove that Paul Charles had the common authority necessary

for his probation status to afford probation officers the authority to conduct a warrantless search

of the padlocked bedroom.

{¶ 29} Appellant’s sole assignment of error is sustained. The judgment of the Scioto

County Common Pleas is reversed; and this matter is remanded for further proceedings

consistent with this decision.

JUDGMENT REVERSED AND CAUSE REMANDED. Scioto App. No. 14CA3618 13

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS REVERSED AND THIS CAUSE REMANDED. Appellee shall pay the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Harsha, J.: Concurs in Judgment and Opinion. Abele, P.J.: Dissents.

For the Court

By: Marie Hoover, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.