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State v. Barnes

Court of Appeals of Ohio, Third District, Marion

August 21, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
DEMARIO BARNES, DEFENDANT-APPELLANT.

         Appeal from Marion County Common Pleas Court Trial Court No. 15-CR-0415

          J.C. Ratliff and Jeff Ratliff for Appellant

          Kevin P. Collins for Appellee

          OPINION

          PRESTON, P.J.

         {¶1} Defendant-appellant, Demario Barnes ("Barnes"), appeals the November 17, 2016, judgment entry of sentence of the Marion County Court of Common Pleas. For the reasons that follow, we affirm.

         {¶2} This case stems from an arrest warrant served on Barnes on September 9, 2015. On that date, several law enforcement officials traveled to Barnes's residence on Executive Drive in Marion, Ohio to arrest him for trafficking in drugs. Barnes was arrested without incident. He then requested to use the bathroom and entered his residence with law enforcement in order to do so before being transported to jail. An officer who remained at the scene entered the home without permission and without a warrant, and he spoke to Danielle Cutarelli ("Cutarelli"), who lived with Barnes, about Barnes's arrest and about the drugs that were in plain view in the apartment. Cutarelli then signed a document indicating that she consented to a search of the residence. The search that followed revealed drugs and weapons.

         {¶3} On September 24, 2015, the Marion County Grand Jury indicted Barnes on one count of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1), (C)(1), a felony of the fourth degree. (Doc. No. 1). On September 28, 2015, Barnes appeared for arraignment and pled not guilty to the count in the indictment. (Doc. No. 6). On February 11, 2016, the State filed a superseding joint indictment charging Barnes with: Count One of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1), (C)(1), a felony of the fourth degree; Count Two of possession of heroin in violation of R.C. 2925.11(A), (C)(6), a felony of the first degree; Count Three of possession of marijuana in violation of R.C. 2925.11(A), (C)(3), a felony of the third degree; Count Four of possession of cocaine in violation of R.C. 2925.11(A), (C)(4), a felony of the fifth degree; and Count Five of aggravated possession of drugs in violation of R.C. 2925.11(A), (C)(1), a felony of the fifth degree. (Doc. No. 16). Counts Two, Three, Four, and Five include a forfeiture specification as to $8, 396.00 in cash that is allegedly proceeds from drug activity. (Id.). The same counts also include forfeiture specifications as to certain weapons and ammunition used or intended for use in the commission or facilitation of the relevant offenses. (Id.). On February 16, 2016, Barnes appeared for arraignment and pled not guilty to the counts and specifications in the joint superseding indictment. (Doc. No. 19).

         {¶4} On May 3, 2016, Barnes filed a motion to suppress evidence in which he sought the suppression of evidence gathered from the residence because, as relevant here, Curtarelli's consent to the search of the residence was involuntary and was tainted by the initial entry of law enforcement into the home. Barnes further argued in his motion to suppress evidence that the search was invalid because some of the officials involved in the search were probation officers rather than police officers. The State filed a memorandum in opposition to Barnes's motion to suppress evidence on August 31, 2016. (Doc. No. 50). After a hearing, the trial court denied Barnes's motion to suppress evidence on September 14, 2016. (Doc. No. 52). The trial court specifically concluded that law enforcement improperly entered the residence initially, but the trial court also concluded that the taint of the initial entry was dissipated by a significant intervening event-Barnes's request to use the restroom. (Id.). The trial court also concluded that Cutarelli's consent was voluntary, as she appeared coherent and did not manifest any health problems until some time later when she had a seizure on the patio outside the apartment. (Id.). The trial court further concluded that all of those who participated in the search had the authority to do so. (Id.).

         {¶5} On October 4, 2016, Barnes appeared for a change-of-plea hearing and pled no contest to Counts Two and Three of the superseding joint indictment with the attendant specifications pursuant to a negotiated plea agreement. (Doc. No. 62). All other counts were dismissed. (Doc. No. 78). On November 17, 2016, the trial court sentenced Barnes to five years in prison and a $10, 000 fine as to Count Two, as well as 30 months in prison as to Count Three, with the prison terms to be served concurrently for a total of five years of incarceration. (Id.). The trial court further ordered that Barnes's interest in the property described in the specifications be forfeited. (Id.). The trial court filed its judgment entry of sentence on November 17, 2016. (Id.).

         {¶6} Barnes filed his notice of appeal on November 23, 2016. (Doc. No. 81). He brings two assignments of error for our review.

         Assignment of Error No. I

         The Trial Court Erred When It Found That A Significant Intervening Event Had Occurred That Dissipated The Taint Of The Illegal Entry Before The Written Consent to Search Was Given.

         {¶7} In his first assignment of error, Barnes argues that the trial court erred when it concluded that a significant intervening event occurred, purging the taint of law enforcement's allegedly illegal entry into Barnes's residence, which took place before the consent to search was given. Specifically, Barnes argues his request to use the bathroom at his residence was not a significant intervening event that purged the taint caused by law enforcement's initial entry into his residence. Barnes also argues that Cutarelli's consent was involuntary.

         {¶8} A review of the denial of a motion to suppress involves mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to evaluate the evidence and the credibility of witnesses. Id. See also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a motion to suppress, "an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence." Burnside at ¶ 8, citing State v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court's conclusions of law, however, our standard of review is de novo, and we must independently determine whether the facts satisfy the applicable legal standard. Id., citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

         {¶9} The Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution protect individuals against unreasonable searches and seizures by the government, and they protect privacy interests where an individual has a reasonable expectation of privacy. State v. Fielding, 10th Dist Franklin Nos. 13AP-654 and 13AP-655, 2014-Ohio-3105, ¶ 15, quoting Smith v. Maryland,442 U.S. 735, 740, 99 S.Ct. 2577 (1979). An expectation of privacy is protected where an individual has manifested a subjective expectation of privacy and that expectation is one that society recognizes as reasonable Id., citing Smith at 740, citing Katz v. United States,389 U.S. 347, 361 (1967) (Harlan, J., concurring). While the Fourth Amendment does not specifically provide that unlawful searches and seizures will result in the suppression of ill-gotten evidence, the United States Supreme Court has held that the exclusion of evidence is ...


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