[Cite as State v. Nelson,

.] 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

2 OHIO FIRST DISTRICT COURT OF APPEALS

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,

3 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.

4 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,

,

(1998); State v. McCain,

,

,

(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,

,

,

(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,

,

, ¶ 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.”

; see Frazier v. Cupp,

,

,

OHIO 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,

,

, ¶ 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,

,

,

(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

6 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,

,

(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

7 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,

,

,

(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,

,

,

(1990), citing Terry v. Ohio,

,

,

(1968). Thus, the court has found that the Fourth Amendment permits an

officer to make a limited protective sweep incident to arrest.

. 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.”

citing Michigan v. Long,

,

,

(1983), quoting

. 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.

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶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,

,

,

(1971); State v.

Williams,

,

(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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