[Cite as State v. Hawks, 2019-Ohio-2350.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellant : Appellate Case No. 28238 : v. : Trial Court Case No. 2018-CR-2946 : JEREMY W. HAWKS : (Criminal Appeal from : Common Pleas Court) Defendant-Appellee : :
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OPINION
Rendered on the 14th day of June, 2019.
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellant
PETER CERTO, JR., Atty. Reg. No. 0018880, One South Main Street, Suite 1590, Dayton, Ohio 45402 Attorney for Defendant-Appellee
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HALL, J.
{¶ 1} The State of Ohio appeals, pursuant to R.C. 2945.67(A) and Crim.R. 12(K),
from the trial court’s decision and judgment entry sustaining defendant-appellee Jeremy
W. Hawks’ motion to suppress evidence.
{¶ 2} The State advances two assignments of error. First, it contends the trial court
erred in finding no common authority held by a co-inhabitant to allow officers to enter and
search a residence where incriminating evidence was found. Second, it claims the officers
had a “good faith basis” to enter an upstairs bedroom where the evidence was located.
{¶ 3} The present appeal stems from a complaint Dayton police officers received
about Hawks allegedly selling drugs from a house he shared with James Sisco, the owner
of the residence. The underlying facts are based on suppression hearing testimony from
Dayton police officer Kevin Johnson and Hawks, who were the only two witnesses. Those
facts, as found by the trial court, were summarized in its December 19, 2018, Decision,
Entry, and Order as follows:
On July 26, 2018, Dayton police officers, Kevin Johnson and
Brandon Cartee, were dispatched to 1782 Tuttle Avenue, Dayton, Ohio, to
meet a person known as James Sisco, who had called the police about a
person living at Sisco’s house who was involved with drugs. The officers
arrived there at approximately 5:25 p.m., but the caller, James Sisco, was
not there. The officers found out that Sisco had been arrested on an
outstanding warrant and would not be able to meet with them.
The officers decided to approach the house to conduct a “knock and
advise” by knocking on the door and attempting to obtain consent to enter -3-
and search. They found a male outside the residence “grilling.” The
residence is depicted in Exhibit 1. They approached the person and asked
if Jeremy Hawks lived there. The individual, Dana Ray, told him he did and
that he was inside the house. The officers asked Ray if they could enter the
house and find Hawks and requested that Ray sign a police form consenting
to search the residence. Exhibit 11. The police officers knew that Ray was
not the owner of the residence but since he told them he lived there also
they accepted his authority as consent to enter the house. Ray told them he
did not know where Hawks was in the house. The officers did not inquire of
Ray as to where he lived in the residence, where Hawks lived, and whether
he had common use of the area where Hawks lived. They made no inquiry
from Ray as to his actual or apparent authority to permit entry into the house
and/or to search the premises or any part of the premises.
The officers entered the residence through a side door into the
kitchen area. The side door is depicted in Exhibit 2. They saw two people
sitting on a couch. The couch is depicted in Exhibit 3. They asked the two
unknown persons where Hawks was and they pointed upstairs. The police
officers then proceeded up the stairs, depicted in Exhibits 4 and 5 and 6.
There was a doorway at the top of the stairs partially covered by a sheet or
curtain. It did not have a separate door. Officer Johnson stated he heard a
female and a male voice. He did not announce his presence or ask to enter.
He peered into the area that he recognized as a bedroom area and
proceeded through the doorway into the room where a female was lying on -4-
a bed and a male was standing by the bed, both naked. The police asked
the male if he was Jeremy Hawks and he answered yes. Officer Johnson
asked Hawks for his I.D., and Hawks walked toward a dresser to get his I.D.
in his wallet. At that time Officer Johnson stated he saw a plastic baggie on
the dresser containing a crystalline substance which he believed to be
methamphetamine. Hawks pulled on his pants.
Sgt. Beane came upstairs into the bedroom, handcuffed and
arrested Hawks. The police searched Hawks and found a meth pipe in his
pants pocket.
Jeremy Hawks had a rental agreement with James Sisco for the
upstairs of the house. He paid $50.00 per week. Everything upstairs was
his. No one else lived upstairs. Dana Ray lived downstairs in a bedroom
next to Sisco. The sheet or curtain across the doorway upstairs was to
separate his living area from the others in the house. Another sheet may
have separated the sleeping area of the room. The police never asked
permission to enter his separate living area. Officer Johnson came through
the sheets into the sleeping area without saying anything.
(Doc. # 35 at 1-3.)
{¶ 4} Based on the foregoing facts, the trial court engaged in the following analysis
and reached the following legal conclusions:
Defendant argues that the police did not have an authorized consent
to enter his bedroom area without a warrant. He states that the requisite
authority is based “on mutual use of the property by persons generally -5-
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.” Post-
hearing Mem., 1, quoting from State v. Bradley, 2d Dist. Montgomery No.
27509, 2017-Ohio-9224, 102 N.E.3d 618 (December 22, 2017), ¶ 16.
Officers Johnson and Cartee approached the residence with
knowledge that the person they believed owned the house was not there.
They decided to do a “knock and advise.” By definition, that process is an
approach to a residence without consent to search or enter in an attempt to
obtain such consent. They approached a male grilling burgers in the yard
outside on the west side of the house, identified as Dana Ray. They asked
Ray to consent to entering and searching the house given that they did not
have consent from the owner. They made no effort to have Ray provide
evidence of his authority to allow entry and search of the premises. There
is no evidence that Ray had any authority except as an occupant of the
building. The officers did not ask Ray anything about where he resided in
the house, where Hawks resided in the house, and any mutual use or
control over any areas inside the house. There is no evidence offered by
the state as to common use of any areas of the house. The police officers
chose to have Ray sign a consent to search form rather than re-scheduling
when the purported owner, James Sisco, could be there; or, when they
could obtain a search warrant. -6-
As indicated, the legal principle is that a third party can 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 (1974). At best, Ray was a co-inhabitant.
There is no evidence of “mutual use of the property,” or “joint access and
control for most purposes” from which it may be reasonable to assume Ray
had “the right to permit inspection in his own right.”
The state argues there is “[n]othing in the record [that] seriously calls
into question Ray’s authority to allow the officers to enter the common areas
of the home to find Defendant.” State Mem., at 5. That argument ignores
that the state has the burden of establishing common authority. Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990). To establish common authority, the
state must demonstrate that Ray had joint access or control over Hawks’
bedroom for most purposes. The state’s failure to establish this common
authority demonstrates that it failed to show actual authority over the area
where Hawks lived.
Nevertheless, a warrantless search could still be valid if the police
relied in good faith on Ray’s apparent authority to consent. Rodriguez,
supra, 497 U.S. at 188. The existence of apparent authority 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.” Again, the state has
failed to present any evidence that would support a reasonable assumption -7-
that Ray had apparent authority.
In this case, the police officers failed to make the requisite inquiries
of Ray to provide a basis for a person of reasonable caution to determine
whether Ray had mutual use and control of the area where Hawks resided;
“warrantless entry without further inquiry is unlawful.” United States v.
Waller, 426 F.3d 838, 846 (6th Cir. 2005). That is what occurred here. Just
having Ray sign a consent to search form does not meet the state’s “burden
of establishing the effectiveness of a third party’s consent.” Id. at 845, citing
Rodriguez, 497 U.S. at 181. In fact, the testimony of Officer Johnson makes
clear that the police officers were not concerned with Ray’s “mutual use or
control” over the areas where Hawks resided. This is not a case where the
third party’s consent is ambiguous as to his “mutual use or control.” There
was no inquiry into that issue at all.
When the police went upstairs and saw a sheet or curtain across the
doorway, they were on notice that someone (they assumed Hawks) had an
expectation that this was a private area, not an area of common usage by
other habitants. Armed with written consent from Ray, (at best a co-
inhabitant of the residence), and knowing the upstairs area was at least
partially concealed by a curtain or sheet over the doorway, the police
continued through the sheet or curtain and entered the sleeping area,
confronting a naked Hawks and his naked female friend. The police officers
were in Hawks’ sleeping area without a right to be there, when Officer
Johnson observed the baggie that he believed contained -8-
methamphetamine. The argument for “plain view” is not applicable. State v.
Waddy, 63 Ohio St.3d 424, 442, 588 N.E.2d 819 (1992). The search of
Hawks thereafter, argued as incident to his arrest, produced a “meth pipe.”
All evidence obtained is a direct result of the unlawful police entry and
search without a warrant.
Accordingly, the defense motion to suppress is GRANTED.
(Doc. # 35 at 3-5.)
{¶ 5} In its two related assignments of error, the State contends that Ray, a
resident of 1782 Tuttle Avenue, had actual authority to consent to the officers’ entry into
and search of the house because he shared authority over it. (Appellant’s brief at 6-7.)
The State contends the officers were not required to inquire further about Ray’s authority
to consent because there was no ambiguity regarding who had “common authority over
the common use areas of a residence, which is what Officer Johnson was asking for
consent to search from Ray.” (Id. at 7.)
{¶ 6} Even if Ray did not have actual authority to consent, the State argues that
apparent authority existed. At a minimum, the State claims Ray’s act of grilling outside
the residence and his statement to officers that he lived there created an objectively
reasonable belief that he shared common authority over the residence. (Id. at 8.) Finally,
the State asserts that the officers had a “good faith basis” to enter Hawks’ upstairs
bedroom. The State argues that the officers had no reason to believe the upstairs area
was a private bedroom and that officer Johnson entered it in good faith. The State also
questions whether this issue is properly before us given the trial court’s “limited”
discussion of it. (Id. at 9-11.) -9-
{¶ 7} In ruling on a motion to suppress, the trial court “assumes the role of the trier
of fact, and, as such, is in the best position to resolve questions of fact and evaluate the
credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d
498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-116,
¶ 30. Accordingly, when we review suppression decisions, we must accept the trial court’s
findings of fact if they are supported by competent, credible evidence. Retherford at 592.
“Accepting those facts as true, we must independently determine as a matter of law,
without deference to the trial court’s conclusion, whether they meet the applicable legal
standard.” Id.
{¶ 8} With the foregoing standards in mind, we agree with the State that Ray had
actual authority to permit the officers to enter the house and to search any areas over
which he possessed common authority. Ray told the officers that he lived in the house,
and suppression hearing testimony confirmed that he did. This court has recognized that
“a police officer may validly enter and search a home, without a warrant, when the officer
has obtained the voluntary consent of an occupant who shares * * * authority over the
area[.]” State v. Wallace, 2d Dist. Montgomery No. 24383, 2011-Ohio-1741, ¶ 14. Valid
third-party consent “ ‘rests on 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.’ ” State v. Holloway, 2d Dist. Clark No. 2017-CA-91, 2018-Ohio-4636, ¶ 27,
quoting United States v. Matlock, 415 U.S. 164, 172, 94 S.Ct. 988, 39 L.Ed.2d 242, fn. 7
(1974). Because Ray lived in the house and had joint access to common areas, he had -10-
actual authority to permit the officers to enter the house and to search those areas.
{¶ 9} The real issue is whether Ray’s consent extended to Hawks’ upstairs
bedroom or whether the officers reasonably could have believed that it did. The
suppression hearing transcript makes clear that Hawks’ bedroom was his own private
space, that he paid rent for it, and that it was not in any sense a “common area” of the
house. Therefore, Ray lacked actual authority to permit the officers to search Hawks’
upstairs bedroom.
{¶ 10} The next question is whether Ray had apparent authority to consent to a
search of Hawks’ bedroom. “Even 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 to the
search.” State v. McCartney, 12th Dist. Clinton No. 2003-09-023, 2004-Ohio-4781, ¶ 15,
citing Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).
“[U]sing an objective standard, third-party consent is valid if an officer looking at the then-
available facts could reasonably conclude that the third-party had apparent authority to
consent. * * * An officer’s belief is not reasonable if the surrounding circumstances would
lead a reasonable person to doubt the authority of the third party. State v. Portman, 2d
Dist. Clark No. 2013-CA-68, 2014-Ohio-4343, ¶ 13.
{¶ 11} When the officers approached Ray and obtained permission to enter and
search the house, they had been told that it was occupied by at least three men: Ray,
Hawks, and Sisco, the owner. After entering the house through a side door that led into
the kitchen, they saw two unidentified people sitting on a couch in the living room. The
unidentified people pointed upstairs when asked where Hawks could be found. The -11-
officers then ascended a staircase where they encountered a door frame partially covered
by a sheet. In its analysis, the trial court reasoned that “[w]hen the police went up the
stairs and saw a sheet or curtain across the doorway, they were on notice that someone
(they assumed Hawks) had an expectation that this was a private area, not an area of
common usage by other inhabitants.” (Doc. # 35 at 5.) We agree. At a minimum, the facts
then available to the officers reasonably should have caused them to question whether
the upstairs area was a location over which Ray had access and control. Therefore, the
officers could not lawfully proceed through the doorway without engaging in further inquiry
to clarify the situation. United States v. Waller, 426 F.3d 838, 846-847 (6th Cir. 2005)
(citing numerous cases for the proposition that police cannot rely on apparent authority
when the circumstances make it ambiguous or unclear whether the person giving consent
has the necessary authority and no further inquiry or investigation is made); Illinois v.
Rodriguez at 188-189 (recognizing that when the facts known to an officer would cause
“a man of reasonable caution” to doubt whether the consenting party has authority over
the area to be searched, “then warrantless entry without further inquiry is unlawful unless
actual authority exists”).
{¶ 12} Here the officers failed to inquire of Ray about where he stayed in the house.
Nor did they ask him about the parts of the house to which he had access. They also
failed to ask what part of the house Hawks lived in. (Hearing Tr. at 25-26.) The officers
failed to ask any of these questions despite having been told before entering that at least
three men lived in the house and that Hawks had been renting space from Sisco for
several months. (Id. at 28.) Without knowing the answers to any of these questions,
Officer Johnson proceeded past a sheet that partitioned an upstairs part of the house off -12-
from other areas. (Id. at 17.) If Johnson had made any inquiry, he would have discovered
that the area behind the sheet was Hawks’ private bedroom and that Ray lacked authority
to consent to a search of that area. Instead, when confronted with the ambiguous
situation, he proceeded past the hanging sheet and found a “very shocked” and naked
Hawks and a female companion.1 (Hearing Tr. at 17.)
{¶ 13} In opposition to the trial court’s finding that the officers had an obligation to
inquire, the State asserts that no inquiry was required because no ambiguity existed. The
State reasons that Ray’s act of grilling outside the house and his statement that he lived
there “made it reasonable and unambiguous that he lived in the home and had the
authority to consent to the search.” (Appellant’s brief at 7.) The State also asserts that the
staircase leading to Hawks’ upstairs bedroom unquestionably was located in a common
area. (Id. at 10.) The critical issue, however, is not whether uncertainty or ambiguity
existed regarding Ray’s authority to consent to the officers’ entry into the home or even
to their use of the staircase. Rather, as explained above, the issue is whether Ray’s
permission unambiguously extended to the area behind the hanging sheet upstairs. We
agree with the trial court that Ray’s authority to consent to a search of that area
reasonably should have been unclear to the officers based on the facts then known to
them. Therefore, Johnson did have an obligation to inquire further before proceeding past
the sheet.
{¶ 14} Finally, we reject the State’s argument that the officers had a good-faith
1 Even then, Johnson did not turn away and exit the bedroom. Instead, he engaged in conversation with Hawks, requesting his identification and directing him to put pants on. (Hearing Tr. at 17.) Only after this did Johnson notice a baggie of methamphetamine on Hawks’ dresser. (Id. at 17-18, 20-21.) -13-
basis to enter Hawks’ upstairs bedroom. In its appellate brief, the State frames this issue
as one involving the good-faith exception to the exclusionary rule, which has been applied
almost exclusively in the context of a defective search warrant or arrest warrant. State v.
Dennis, 182 Ohio App.3d 674, 2009-Ohio-2173, 914 N.E.2d 1071, ¶ 57 (2nd Dist.). The
State’s post-hearing memorandum did not invoke the good-faith exception or even
mention it. (Doc. # 34.) Nor did the State mention the good-faith exception to the
exclusionary rule during the suppression hearing. But the State did argue below that the
officers acted reasonably in entering Hawks’ upstairs bedroom based on apparent
authority. The doctrine of apparent authority requires a showing that law enforcement
officers “relied in good faith on a third party’s apparent authority to consent to the search.”
McCartney, at ¶ 15. Thus, in the present context, the doctrine of apparent authority and
the good-faith exception to the exclusionary rule are essentially the same. Therefore,
even assuming that the State can raise its good-faith argument, the argument necessarily
fails. In its ruling below, the trial court recognized that the upstairs search could “be valid
if the police relied in good faith on Ray’s apparent authority to consent.” (Doc. # 35 at 4.)
It concluded that no apparent authority existed, however, and we have upheld that
determination. Therefore, we see no support for the State’s claim that the officers had a
good-faith basis to enter Hawks’ bedroom.
{¶ 15} Based on the reasoning set forth above, we overrule the State’s two
assignments of error and affirm the judgment of the Montgomery County Common Pleas
Court.
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WELBAUM, P.J. and DONOVAN, J., concur.
Copies sent to:
Mathias H. Heck, Jr. Michael P. Allen Peter Certo, Jr. Hon. Richard Skelton