State v. Smith, 90WD077

• Decision Date: 03 May 1991
• Docket Number: No. 90WD077,90WD077
• Citation: 597 N.E.2d 1132,73 Ohio App.3d 471
• Parties: The STATE of Ohio, Appellant, v. SMITH, Appellee.
• Court: Ohio Court of Appeals

Page 471

73 Ohio App.3d 471

597 N.E.2d 1132

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

No. 90WD077.

Court of Appeals of Ohio, Sixth District, Wood County.

Decided May 3, 1991.

Alan R. Mayberry, Pros. Atty., for appellant.

Adrian P. Cimerman, Toledo, for appellee.

PER CURIAM.

Appellant, the state of Ohio, is appealing an order of the Wood County Court of Common Pleas granting defendant-appellee's motion to suppress evidence. The court found that a warrantless search of appellee's motel room which produced an allegedly forged Ohio operator's license was not incident to his arrest and was in violation of his Fourth Amendment right to be free from unreasonable searches. We find that the trial court correctly applied the law to the facts and, therefore, affirm its decision.

On the morning of May 16, 1990, Northwood, Ohio police were called to the Bahala Inn on complaint of a Bridget Smith. Smith told police that she had been staying in room 158 of the Bahala with a man named Jack Dickerson. According to Smith, earlier that morning Dickerson had held a gun to her head, threatened to kill her, and pistol-whipped her. Officers observed bruises on Smith's body.

Officers went to the motel and knocked on the door of room 158. The door was open. Officers entered. Once inside, police observed two females and appellee who was lying on the bed. An officer asked appellee if his name was Dickerson. Appellee indicated that it was. During this exchange a second officer picked up a wallet from a dresser and inquired of appellee if it was his. Appellee said it was. The officer opened the wallet and removed an Ohio operator's license bearing appellee's picture and the name Jack Dickerson II.

Appellee was arrested for felonious assault. Subsequent to appellee's arrest, Bridget Smith executed a consent form granting police permission to search room 158. At some point, the record is unclear as to when, Smith told police that appellee was not Jack Dickerson, but was in fact Charles Smith. Police investigated and later added two counts of forgery to the felonious assault charge. One forgery count was based on the Dickerson operator's license found in room 158. The second count was based on appellee signing the name of Jack Dickerson to his fingerprint card during booking.

Bridget Smith did not appear at appellee's preliminary hearing, and the state was unable to produce any witnesses in support of the felonious assault charge. That count was dismissed. Appellee was bound over to the grand jury and later indicted on the two counts of forgery. Appellee pled not guilty and moved to suppress both the allegedly forged operator's license and the fingerprint card signed after his arrest. Appellee asserted both had been obtained in a manner violating his Fourth Amendment right to be free from unreasonable searches.

Following a hearing, the trial court found that the search of appellee's wallet had been violative of the Fourth Amendment and ordered the seized operator's license suppressed. From this order the state filed a Crim.R. 12(J) affidavit and a notice of appeal.

Appellee in his brief argues a cross-assignment of error; however, he failed to file a notice of appeal pursuant to App.R. 4(B). This court, therefore, is without jurisdiction to entertain appellee's cross-assignment of error. Kaplysh v. Takieddine (1988), 35 Ohio St.3d 170, 175, 519 N.E.2d 382, 386-387. Remaining then is appellant's single assignment of error:

"The trial court erred in granting the defendant's motion to suppress as the defendant was lawfully taken into custody at the time of his arrest and the operator's license was found incident to that arrest."

Under the Fourth Amendment to the Constitution of the United States and Section 14, Article I of the Constitution of Ohio, warrantless searches are unreasonable per se. State v. Kessler (1978), 53 Ohio St.2d 204, 207, 7 O.O.3d 375, 376, 373 N.E.2d 1252, 1255. To this basic rule there are but a few specifically established exceptions. The state bears the burden of proving that one of these exceptions applies in order for evidence seized as a result of a warrantless search to survive a motion to suppress. Id.

Appellant puts forth two exceptions which it asserts apply to the case at bar. First, appellant argues that the search in question was incident to a lawful arrest and, therefore, exempt from the requirement of a warrant. Chimel v. California (1969), 395 U.S. 752, 762-763, 89 S.Ct. 2034, 2039-2040, 23 L.Ed.2d 685, 693-694; United States v. Robinson (1973), 414 U.S. 218, 235, 94 S.Ct. 467, 476, 38 L.Ed.2d 427, 440. In the alternative, should we fail to find the search in question an incident of arrest, appellant would have us apply the doctrine of inevitable discovery as articulated in Nix v. Williams (1984), 467 U.S. 431, 443-444, 104 S.Ct. 2501, 2508-2509, 81 L.Ed.2d 377, 387-388.

In order for appellant to prevail on its first theory there must be both a lawful arrest and the search must be incident to that arrest. Preliminarily, it must be established that the officers were legally present in the motel room. Absent consent or exigent circumstances, police may not enter one's home to perform a search or to seize either a person or property without a warrant. Payton v. New York (1980), 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639, 653. The sanctity of the home extends to any area where one has a legitimate and reasonable expectation of privacy. Rakas v. Illinois (1978), 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387, 400. See, also, Katz v. United States (1967), 389 U.S. 347, 351-352, 88 S.Ct. 507, 511-512, 19 L.Ed.2d 576, 581-582. The parties here agree that an occupied motel room is afforded such protection. See, also, Stoner v. California (1964), 376 U.S. 483, 490, 84 S.Ct. 889, 893, 11 L.Ed.2d 856, 861.

The authority to consent to the entrance of a protected area, however, does not rest solely with one who seeks to assert Fourth Amendment rights. Consent may also be provided by a third party who possesses common authority over the premises in question. United States v. Matlock (1974), 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, 249. Such authority rests not on property rights; " * * * but rests rather 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 * * * [entry]." Id. at fn. 7.

In the case before us, Bridget Smith summoned police to the Bahala Inn and reported the alleged felonious assault which supposedly occurred in the room in which she had been staying. Smith, therefore, held herself out to be a coinhabitant of appellee's room. The record shows, notwithstanding appellee's assertion that Smith's name was not on the motel register, that Smith was a coinhabitant of the room. That fact is uncontroverted. Being a coinhabitant she meets the Matlock test and had common authority to grant the police permission to enter the premises. Clearly, Smith summoned police to the motel, pointed out the room to officers, and knew the officers intended to enter the room. Viewing the totality of the circumstances, we find that the trial court possessed substantial evidence to determine that Smith consented to the officers' entry into room 158.

The record, however, suggests that Smith did not consent to a search of room 158 prior to the discovery of the suppressed operator's license. No officer testified that a consent to search was discussed with Smith prior to the police entry of room 158. The consent to search that Smith did sign clearly was signed after the appellee was in custody and after the contested search occurred. We decline, as did the trial court, to imply from Smith's conduct that she consented to a search prior to the discovery of the operator's license. Accordingly, we hold that appellee's arrest was lawful pursuant to R.C. 2903.11 and 2935.03(B). We also hold that there was no consent for the search that produced the suppressed evidence.

We must next determine whether the search that uncovered the suppressed evidence was incident to appellee's arrest. Appellant argues that because it was the intention of the officers to arrest appellee from the moment they entered the room, anything that occurred subsequent to their entry was incident...