Akron v. Harris

• Decision Date: 09 March 1994
• Docket Number: No. 16474,16474
• Citation: 638 N.E.2d 633,93 Ohio App.3d 378
• Parties: CITY OF AKRON, Appellant, v. HARRIS, Appellee. *
• Court: Ohio Court of Appeals

Page 378

93 Ohio App.3d 378

638 N.E.2d 633

CITY OF AKRON, Appellant, v. HARRIS, Appellee. ^*

No. 16474.

Court of Appeals of Ohio, Ninth District, Summit County.

Decided March 9, 1994.

Douglas J. Powley, Chief City Prosecutor, and Charles R. Quinn, Asst. City Prosecutor, Akron, for appellant.

J. Dean Carro and University of Akron School of Law, Appellate Review Office, Akron, for appellee.

BAIRD, Judge.

This cause was heard upon the appeal of the city of Akron from an order of the Akron Municipal Court granting Eric D. Harris' motion to suppress evidence because the evidence was obtained after an illegal search and seizure. We reverse and remand the case for further proceedings.

On February 10, 1993, Akron police officers, Gary Shadie and Leonard Stephens, answered a call to investigate suspicious persons outside the house at 939 Hamlin Street. As they approached in their vehicle, they observed a man exit the house. When the man saw the police cruiser, he turned and immediately reentered the house. The officers were familiar with the house, knew that Eric Harris ("Harris") and his brother Michael Harris ("Michael") lived there, and had previously made several drug-related arrests at the house. The officers also knew that the Harrises had been evicted and were to have vacated the premises by February 1, 1993.

The officers approached the house and knocked on the side door. Officer Shadie testified, "I was greeted by a voice. I identified myself as 'Officer Shadie, Akron Police Department.' The subject told me to come in. It was a black male. He was standing--there's about 4 steps that lead up into the kitchen and into a dining room. I could see the figure. There were no lights on in the house. The subject told me to come in the house. At that time, myself and my partner, we entered the home." Officer Shadie also testified that he did not recognize the voice, but he did know that the voice was not Harris' and that he "couldn't say for sure" whether the voice belonged to Michael. It was clear at the time of the hearing that the voice belonged to a third party, Tony Bowen.

After entering the house, the officers walked through the kitchen and dining room and into the living room, where they saw approximately five people, including Michael. Because of the large number of people present and the uncertainty of the situation, Officer Shadie called for backup. Michael was sitting on the couch, and Officer Shadie asked him why they had not vacated the premises and whether he knew where his brother was. Michael responded that they had obtained an extension to remain in the house and that Harris was upstairs.

Officer Stephens waited until two backup officers arrived before leaving his partner to go upstairs. Officer Stephens testified that when he went upstairs he could see Harris through an open bedroom door. Harris appeared to be sleeping and Officer Stephens shook him and flashed his flashlight in his eyes to wake him up. Once he was awake, the officer accompanied him downstairs.

Once downstairs, Officer Shadie asked Harris why he was still living in the house and what was going on there. According to Officer Shadie, Harris responded, "there's nothing going [sic ] in this house. There's no drug sales or anything like that. You can look around if you like." Harris testified that he did not consent to the search until a police officer specifically asked him if it was okay to look around. The officers maintain that he offered the consent without being asked.

The officers proceeded to search the living room and found a crack pipe on a chair, push rods, and a piece of crack cocaine between the cushions of the couch. Harris was charged with permitting drug abuse (Akron City Code 138.12). A motion was filed to suppress evidence found in the search on the grounds that the entry and search of the home were unconstitutional. Following a hearing, the trial court granted the motion.

It is from this ruling that the city now appeals, asserting a single assignment of error:

"The Akron Municipal Court erred in finding that a nonconsensual search or illegal entry of the defendant's premises occurred."

The trial court identified the relevant issue in this case as "whether a visitor may admit the police to another's residence and in doing so waive the resident's constitutional rights." The court's journal entry then continued:

"While a warrantless search of private property is ordinarily unreasonable under the Fourth Amendment * * *, a number of 'specifically established and well-delineated exceptions' to the search warrant requirement have been recognized by the courts. Katz v. U.S. (1967), 389 U.S. 347, 357 [88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585]. The only [exception relevant to this case] allows a warrantless search upon the voluntary consent of a third party with the authority to waive the warrant requirement and permit the entrance into the premises and a search. Therefore, if a third person who shares authority with the Defendant over the area grants permission to search, the Defendant himself need not be present or authorize the entrance. U.S. v. Matlock (1974), 415 U.S. 164 [94 S.Ct. 988, 39 L.Ed.2d 242]."

The court then outlined cases determining whether a person who consented to a police search had sufficient "authority over the area" or "interest in the premises" to allow evidence obtained in the search to be used against a defendant. Based upon these cases, the court concluded that "a mere visitor, who is not an overnight guest and who is without possessory interest in the premises, has no constitutional interest in the premises and may not admit the police into the premises on his or her own authority."

The court, however, noted that, even if a person did not have actual authority over the area to which consent to search was granted, the consent is still valid if the police reasonably believe that the person possesses common authority over the premises. Illinois v. Rodriguez (1990), 497 U.S. 177, 188-189, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148, 161. In this case, the court concluded:

"[T]he entering officers had actual knowledge that the Defendant and his brother were the only persons with a leasehold interest in the property. The police did not...