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State v. Holland

Court of Appeals of Ohio, Second District, Montgomery

June 14, 2019

STATE OF OHIO Plaintiff-Appellee
v.
LOUIS A. HOLLAND Defendant-Appellant

          Criminal Appeal from Common Pleas Court No. 2018-CR-383

          MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Attorney for Plaintiff-Appellee.

          CHRISTOPHER C. GREEN, Atty. Reg. No. 0077072, Attorney for Defendant-Appellant.

          OPINION

          DONOVAN, J.

         {¶ 1} After the trial court overruled his motion to suppress, Louis A. Holland pled no contest in the Montgomery County Court of Common Pleas to one count of having weapons while under disability (prior offense of violence), in violation of R.C. 2923.13(A)(2), a felony of the third degree. The trial court sentenced him to community control for a period not to exceed five years. For the following reasons, the trial court's judgment will be reversed, and the matter will be remanded for further proceedings.

         I. Factual Background

         {¶ 2} The State presented two witnesses at the suppression hearing: Detective Melissa Schloss of the Dayton Police Department, and Detective Brad Daugherty of the Montgomery County Sheriffs Office, who was assigned to the Dayton Police Homicide Unit. Holland called two individuals, Tonya Turner (Turner) and Erika Turner (Erika), whom the trial court generally did not believe. The State's evidence, which the trial court credited, established the following facts.

         {¶ 3} In late January 2018, homicide detectives Schloss and Daugherty were investigating the death of Michael Cook, which occurred in an alley near Brooklyn Avenue on January 27, 2018. The detectives learned from Cook's family that Cook was trying to sell a shotgun and that Calvin Jones (whom the family knew) and another individual (whom the family did not know) had talked to Cook about the gun on the day before the murder. Detectives located Jones and took him into custody; Jones had a firearm near his person that the police then believed was the murder weapon.

         {¶ 4} During the detectives' interviews of Jones and another person (Taveon Hunt), a particular phone number repeatedly called Jones's and Hunt's phones. The detectives had obtained Cook's phone records, and the same phone number was the last number that had called Cook's phone prior to his death. Upon searching Facebook, the phone number was associated with the name "Allen Nonchalant"[1] with "Brooklyn Avenue" in parentheses. On January 28, 2018, detectives obtained several GPS locations for the phone associated with "Allen Nonchalant." From late January 28, 2018 to the morning of January 29, 2018, the phone was stationary at an address on Theodore Avenue. Detective Daugherty believed that whomever was in possession of the phone had spent the night at the Theodore residence.

         {¶ 5} At approximately 8:45 a.m. on January 29, 2018, Detectives Schloss and Daugherty, two other detectives, a supervisor, and two uniformed officers went to the Theodore residence. Detective Daugherty testified that their goal was to identify "Allen Nonchalant" and determine whether that person was connected with Cook's homicide. Detective Daugherty knocked on the door, which was answered by Tonya Turner, the homeowner. Daugherty asked about the name Allen Nonchalant, and Turner indicated that her daughter and her daughter's boyfriend were there. Turner stated that her daughter was upstairs, and the boyfriend was in a back bedroom. Daugherty asked for permission to enter the residence to look for "Allen Nonchalant," and Turner agreed.

         {¶ 6} Detective Schloss, Detective Daugherty, and Officer Gresham entered the residence. The door to the first-floor back bedroom was closed, and the detectives called out several times for "Allen" to come out; no one opened the bedroom door. With firearms in a "low ready" position, the officers opened the bedroom door; they found Holland on top of the bed with an infant. Detective Schloss testified that Holland had not consented to the officers' entry. Daugherty ordered Holland to raise his hands; Holland complied and got off the bed. Detective Daugherty entered the room, holstered his weapon, placed Holland in handcuffs, and patted him down. Schloss stood "right outside the room." Daugherty stated that another officer conducted a protective sweep to make sure no one else was in the room. Daugherty then took Holland outside to a cruiser.

         {¶ 7} Detective Schloss then spoke with Turner. Schloss advised Turner that the officers were there in regards to a homicide investigation, and Schloss asked Turner who lived in the house. Turner told Schloss that she was the only person who lived at the house, but her daughter, Erika, and Erika's boyfriend had stayed the night. The detective asked Turner if the officers could search the residence, and the detective provided a consent to search form. Detective Schloss reviewed the form with Turner, explaining that Turner had the right to refuse the search. Schloss stated that Turner was "very cooperative," wrote her name at the top of the form, and signed and dated the form. The detective wrote what they were there for and the description of the house and signed it. Schloss testified that she made no threats or promises to Turner, and that Turner did not appear to be intoxicated or under the influence of drugs or alcohol. Schloss did not participate in the search of the house.

         {¶ 8} After Detective Schloss obtained Turner's consent to search, the police officers "searched the residence to make sure there's no guns or anything in there." Turner had told the officers that she had a .45 caliber handgun in the back bedroom where Holland had been. Detective Daugherty returned to the back bedroom and searched that room. The detective saw a closed (zipped) desert-camouflage backpack at the foot of the bed on the floor. Daugherty opened multiple compartments in the backpack and found marijuana and a .45 caliber handgun. Daugherty asked Turner if that was her gun, and she responded that it was not; Turner showed the officers where her gun was hidden in a dresser in the back bedroom. Turner also stated that she had an AK-47 rifle in the back bedroom, but the officers never located it. The officers found ammunition in the living room of the house.

         {¶ 9} Detective Daugherty testified that the camouflage bag and its contents were seized and taken to the police station. Holland was also taken to the police station and interviewed. The recorded interview began at 10:13 a.m.; Daugherty advised Holland of his Miranda rights using a pre-interview form. Holland initialed next to each right to indicate his understanding and signed the form. Daugherty testified that he did not make any threats or promises to Holland, who did not appear to be under the influence of drugs or alcohol. Daugherty stated, and the video reflects, that Holland did not request an attorney.

         {¶ 10} During the interview, Holland stated that the backpack was not his, but he used it sometimes. He told the detective that the backpack had been left at his residence around Christmas time, approximately a month prior to the interview. When asked how the backpack got to Turner's house, Holland responded that he had brought it there. Holland told Detective Daugherty that he put his Brisk drink in the large pocket of the backpack. After Detective Daugherty told Holland that the backpack also contained baggies and a .45 caliber High Point handgun, Holland acknowledged that the gun was his. He did not recall where he had gotten the gun, because he "had it so long."

         {¶ 11} Tonya Turner testified on Holland's behalf. She indicated that Holland was in a relationship with her daughter, Erika, and was the father of her granddaughter. Turner testified that she resided on Theodore Avenue.

         {¶ 12} According to Turner, on the morning of January 29, 2018, she was at home with her daughter, Holland, and her two grandchildren; Holland, Erika and the children had spent the previous night there. Turner testified that she was asleep when law enforcement knocked on her door, awakening her. She opened the door to three or four police officers. Turner stated that she "spoke with the lady, and she said who she was, and they asked was my daughter there." According to Turner, "a gentleman asked me was her boyfriend here, and I said yes, and he said where is he at." Turner testified that "first, I said they were upstairs. Then I said they were in the bedroom across the hall from [my bedroom]" on the first floor. Turner testified that Holland spent the night in the back bedroom on the first floor, and he was in that bedroom with her granddaughter when the police arrived.

         {¶ 13} Turner stated that she "turned around to go, and they just came in." She denied that she had invited the officers into her home. After the officers entered, "[t]hey was like kept asking me * * * where my room was. And when I was going to show him, he pulled out a gun." According to Turner, the officers "went through my hallway and asked for somebody named Stephan," a name Turner did not recognize. No one responded to calls for "Stephan." At that point, an officer said, "This is the Dayton Police, come down with your hands up." Turner testified that the police had her sit in the living room, and she was unable to see anything else thereafter. Turner stated that Holland was subsequently removed from her home in handcuffs, along with a camouflage backpack at the same time. Turner testified that the "lady police officer" asked to search her home "after they took out Mr. Holland and my daughter out of the house."

         {¶ 14} On cross-examination, Turner testified that she allowed Holland to stay at her house "if he needs to." She testified that when she answered the door, the officers "asked about my daughter, and then they asked about her boyfriend. They never said his name." Upon questioning by the court, Turner stated that no one mentioned the name "Allen." Turner reiterated the she did not invite the police into her home. Turner testified that the "female" asked her to fill out a consent to search form after her daughter and Holland were removed from the house. Turner acknowledged that she told the officers she had a gun, and that it was located in the room occupied by Holland.

         {¶ 15} When asked by the court about the circumstances under which Holland stayed at her home, Turner responded, "[l]ike if I have a dinner or something like that, they're allowed to stay over. We had a pizza party that night." She stated that Holland and her daughter had their own home elsewhere. When asked why Erika and Holland were in different bedrooms, Turner stated that Holland and her daughter were not married so they "can't sleep in the same room in my house."

         {¶ 16} Finally, Erika Turner testified that she and Holland had two children together and were dating in January 2018, but were not dating at the time of the suppression hearing. In January 2018, she and Holland lived at their own residence, but they stayed overnight at her mother's house on January 28-29, 2018. Erika had slept in an upstairs bedroom while Holland slept in a first-floor bedroom across from her mother's bedroom.

         {¶ 17} According to Erika, on the morning of January 29, she became aware that the police had come to her mother's house when they called for her to come downstairs. Erika testified that she came downstairs with her daughter. When they came downstairs, the police had them sit on the steps "so they could escort Mr. Holland out." Erika saw that Holland was handcuffed when he was removed from the house. On cross-examination, Erika indicated that she had spoken with the police on January 27, 2018, about the homicide investigation, but she denied knowing why the police came to her mother's house. She also denied telling her mother and Holland that she had spoken to the police on January 27 about a homicide.

         II. Procedural History

         {¶ 18} On February 21, 2018, Holland was indicted on one count of having weapons under disability. On March 16, 2018, Holland moved to suppress "[a]ny and all evidence obtained as a result of the search of the room Defendant was sleeping in," "[a]ny and all evidence obtained as a result of the search of the Defendant's backpack," and Holland's statements. The court held a hearing on the motion on April 19, 2018, during which the court received exhibits and heard testimony, as described above.

         {¶ 19} The parties filed post-hearing briefs. Holland argued that he was an overnight guest at Theodore Avenue at the time of the search, that law enforcement conducted an unlawful search of his bedroom and of his backpack, and that he was unlawfully seized by law enforcement. Holland stated that his status as an overnight guest gave him a reasonable expectation of privacy in the bedroom. Holland argued that the officers' opening of the door of the bedroom where he slept was an unlawful search, and that he was seized without probable cause. Holland further argued that, because his statements were obtained through an unlawful search and unlawful seizure, they were subject to suppression. Holland claimed that Tonya Turner's consent to search the bedroom where he slept was invalid because he was removed to "prevent him from ...


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