State v. Wingerd

• Decision Date: 14 January 1974
• Citation: 318 N.E.2d 866,40 Ohio App.2d 236
• Parties: , 69 O.O.2d 217 The STATE of Ohio, Appellee, v. WINGERD, Appellant.
• Court: Ohio Court of Appeals

Page 236

40 Ohio App.2d 236

318 N.E.2d 866, 69 O.O.2d 217

The STATE of Ohio, Appellee, v. WINGERD, Appellant.

Court of Appeals of Ohio, Fourth District, Athens County.

Jan. 14, 1974.

Syllabus by the Court

The protection afforded by the Fourth and Fourteenth Amendments to the United States Constitution, with respect to a search of one's house, may be waived by consent freely and intelligently given.

Lavelle & Yanity and Charles David Frey, Athens, for appellant.

Michael S. Nolan, Columbus, for appellee.

GRAY, Judge.

This cause is in this court on appeal from the municipal court of the city of Athens. Defendant was charged with and convicted of possession of marijuana, contrary to the provisions of R.C. 3719.41. Defendant had a bench trial. A motion to suppress evidence was filed and overruled. Later, a trial on the merits occurred with a conviction resulting. Defendant filed the following assignment of error:

'The trial court committed prejudicial error when it failed to sustain defendant's motion to suppress or exclude evidence.'

James Hoffman on the day in question had responsibility for the operation of residence halls on the East and College Green of Ohio University. In this capacity, he was charged with responsibility for the management of Scott Quad where the offense is alleged to have occurred. On the 26th of January, 1972, Hoffman received a call from a member of his staff at Scott Quad that an individual was offering drugs for sale therein. He went to investigate. It now becomes important that we learn exactly what occurred. That is best accomplished by quoting Hoffman directly. He testified as follows:

'A. We knocked on the door and Mark answered the door. We asked him if we could come in. We went into the room and shut the door. He indicated to-He (Zaler) indicated to Mark that we had reason to believe that he had drugs, either on his person or in his room, and would he give them to us, which he did.

'Q. Did you tell Mr. Wingerd you had a search warrant?

'A. No I don't think so. I don't recall.

'Q. You took the search warrant?

'A. Yes.

'Q. You did not show that to Mr. Wingerd?

'A. I don't recall, no.

'Q. Do you recall whether Mr. Zehner may have?

'A. No. I had it on my person, in my pocket.

'Q. You did not show it to Mr. Wingerd?

'A. I don't actually recall whether I did or didn't. Well, if it is of any help, we don't automatically impose the search-and-seizure policy. It's standard procedure in my instance to first ask whether or not the individual has any and will he, in fact, cooperate and give it to us, which he did. Other than that, I don't recall.

'* * *

'Q. Now, you say the defendant gave to you the materials you were seeking?

'A. Yes. He gave to us some, you know, a shoebox with five bags of what appeared to be marijuana, and then Carl asked whether or not he had any sopors on him. He went into his pocket and gave us four capsules.

'* * *

'Q. So in other words, its your testimony that you came to the defendant's room, knocked, he opened the door and allowed you to enter. You entered and then said something to the effect, 'Do you have any drugs,' and, with that question, he responded by going to some portion of his room and then tendering to you a box that contained marijuana?

'A. That's right.'

In the trial on the merits Carl Zaler testified as follows:

'A. Mark saw me, and Mark had been a resident in Bush Hall. He did know who I was. We were surprised to see each other. He let me in the room. I told Mark that we had reason to believe that he had drugs in his possession, and we would like for him to hand them over to us, the other person being, again, the Greens Director, Jim Hoffman. Mark did not give us any problem at all, no hassle or anything. He went immediately to his closet and brought out a shoe box from the shelf in his closet and handed it over to me.

'I handed it to Jim Hoffman, and told Mark that it was my understanding that he had some sopors in his possession, and he asked him to hand those over, too. And at that time he handed over some colored tablets to me and I put them in the box.'

Defendant filed his notice of appeal thereby lodging the case in his court for review.

We are of the opinion that no prejudicial error occurred. The lower court during the trial stated that it was its opinion that the defendant consented to the search. We agree.

We think it clear from the record that defendant agreed to the search without a word of complaint or objection and in a setting which is not to be equated with the aura of oppressiveness which oft pervades the precincts of a police station. The trial court held the physical evidence to be admissible, and we cannot say it erred in so doing.

The protection afforded by the Fourth and Fourteenth Amendments, with respect to a search of one's house may, of course, be waived by consent freely and intelligently given. Whether such consent exists is usually a question which is 'simply one of fact for the trier's determination.' Burge v. United States (C.C.A.8, 1964), 332 F.2d 171, 173, cert, denied, 379 U.S. 883, 85 S.Ct. 155, 13 L.Ed.2d 89.

If the finding is in the affirmative and is supported by substantial evidence, it is not our privilege on appeal to revise it. Maxwell v. Stephens (C.C.A.8, 1965), 348 F.2d 325, 336; Burge v. United States, supra, 332 F.2d at 173; Burnside v. Nebraska (C.C.A.8, 1965), 346 F.2d 88, 90.

We specifically hold that the finding of the trial court is supported by substantial evidence and no prejucicial error occurred because of its overruling of the motion to suppress.

While we believe that the above authorities are dispositive of the issue in this case, our research has led us to other interesting facets of the question before us. Burdeau v. McDowell (1921), 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048, while an old case is still the law. Headnotes 1 and 2 of 41 Sup.Ct. state as follows:

'1. * * *

'Const.U.S. Amend. 4, giving protection against unlawful searches and seizures applies only to governmental action, and that amendment is not violated by the seizure of private papers by a private corporation from the possession of a director and employe, though such seizure was unlawful.' (Emphasis supplied.)

'2. * * *

'Const.U.S. Amend. 5, securing a citizen from compulsory testimony against himself, is not violated by the use of his private books and papers in a criminal prosecution against him, where the books and papers had been seized, even though unlawfully, by a private corporation of which he was director, without the knowledge or connivance of any public officer, and had been thereafter turned over to a special agent or the Attorney General.'

The origin and history of the Fourth Amendment shows that it was intended as a restraint upon the activities of sovereign authority.

The U. S. Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, at page 488, 91 S.Ct. 2022, at page 2049, 29 L.Ed.2d 564, said:

'The exclusionary rules were fashioned 'to prevent, not to repair,' and their target is official misconduct. They are 'to compel respect for the constitutional guaranty in the only effectively available way-by removing the incentive to disregard it.' Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669. But it is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals. If, then, the exclusionary rule is properly applicable to the evidence taken from the Coolidge house on the night of February 2, it must be upon the basis that some type of unconstitutional police conduct occurred.'

The philosophy of the Ohio Supreme Court in such an instance is stated in State v. Bolan, 27 Ohio St.2d 15, at pages 18 and 19, 271 N.E.2d 839, at page 842, as follows:

'Essentially this same conclusion has been reached almost uniformly by courts of other jurisdictions. The rationale of these cases is that the duty of giving 'Miranda warnings' is limited to employees of governmental agencies whose function is to enforce law, or to those acting for such law enforcement agencies by direction of the agencies; that it does not include private citizens not directed or controlled by a law enforcement agency, even though their efforts might aid in law enforcement.' (Emphasis supplied.)

'In drawing a line of demarcation between questioning by governmental law enforcement personnel and questioning by private citizens, these cases not only have adhered to the restricted meaning of 'custodial interrogation' employed in Miranda, but also are in accord with the rationale of Burdeau v. McDowell (1921), 256 U.S. 465 41 S.Ct. 574, 65 L.Ed. 1048 where a similar distinction was made as to the admissibility of evidence obtained by unlawful search and seizure.'

See Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266, for the ideology of the United States Supreme Court pertaining to the rights, obligations, and immunities of students on college campuses.

For the above reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

ABELE, J., concurs.

STEPHENSON, P. J., dissents.

STEPHENSON, Presiding Judge (dissenting).

I respectfully dissent from the judgment and opinion in this appeal. My reason for doing so is that its disposition cannot properly rest either upon simply determining the sufficiency of the evidence presented upon the motion to suppress to support a trial court's findings of consent or, under this record, by a conclusion that the residence personnel were 'private persons' not subject to Fourth Amendment restrictions.

Appellant contended in the suppression hearing that the resident dormitory personnel who seized the evidence were agents of public police authority by reason of being required by Ohio University policy to investigate drug violations in the dormitories, being...