Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court No. 2018-CR-2946
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No.
0095826, Attorney for Plaintiff-Appellant
CERTO, JR., Atty. Reg. No. 0018880, Attorney for
1} The State of Ohio appeals, pursuant to R.C.
2945.67(A) and Crim.R. 12(K), from the trial court's
decision and judgment entry sustaining defendant-appellee
Jeremy W. Hawks' motion to suppress evidence.
2} The State advances two assignments of error.
First, it contends the trial court erred in finding no common
authority held by a co-inhabitant to allow officers to enter
and search a residence where incriminating evidence was
found. Second, it claims the officers had a "good faith
basis" to enter an upstairs bedroom where the evidence
3} The present appeal stems from a complaint Dayton
police officers received about Hawks allegedly selling drugs
from a house he shared with James Sisco, the owner of the
residence. The underlying facts are based on suppression
hearing testimony from Dayton police officer Kevin Johnson
and Hawks, who were the only two witnesses. Those facts, as
found by the trial court, were summarized in its December 19,
2018, Decision, Entry, and Order as follows:
On July 26, 2018, Dayton police officers, Kevin Johnson and
Brandon Cartee, were dispatched to 1782 Tuttle Avenue,
Dayton, Ohio, to meet a person known as James Sisco, who had
called the police about a person living at Sisco's house
who was involved with drugs. The officers arrived there at
approximately 5:25 p.m., but the caller, James Sisco, was not
there. The officers found out that Sisco had been arrested on
an outstanding warrant and would not be able to meet with
The officers decided to approach the house to conduct a
"knock and advise" by knocking on the door and
attempting to obtain consent to enter and search. They found
a male outside the residence "grilling." The
residence is depicted in Exhibit 1. They approached the
person and asked if Jeremy Hawks lived there. The individual,
Dana Ray, told him he did and that he was inside the house.
The officers asked Ray if they could enter the house and find
Hawks and requested that Ray sign a police form consenting to
search the residence. Exhibit 11. The police officers knew
that Ray was not the owner of the residence but since he told
them he lived there also they accepted his authority as
consent to enter the house. Ray told them he did not know
where Hawks was in the house. The officers did not inquire of
Ray as to where he lived in the residence, where Hawks lived,
and whether he had common use of the area where Hawks lived.
They made no inquiry from Ray as to his actual or apparent
authority to permit entry into the house and/or to search the
premises or any part of the premises.
The officers entered the residence through a side door into
the kitchen area. The side door is depicted in Exhibit 2.
They saw two people sitting on a couch. The couch is depicted
in Exhibit 3. They asked the two unknown persons where Hawks
was and they pointed upstairs. The police officers then
proceeded up the stairs, depicted in Exhibits 4 and 5 and 6.
There was a doorway at the top of the stairs partially
covered by a sheet or curtain. It did not have a separate
door. Officer Johnson stated he heard a female and a male
voice. He did not announce his presence or ask to enter. He
peered into the area that he recognized as a bedroom area and
proceeded through the doorway into the room where a female
was lying on a bed and a male was standing by the bed, both
naked. The police asked the male if he was Jeremy Hawks and
he answered yes. Officer Johnson asked Hawks for his I.D.,
and Hawks walked toward a dresser to get his I.D. in his
wallet. At that time Officer Johnson stated he saw a plastic
baggie on the dresser containing a crystalline substance
which he believed to be methamphetamine. Hawks pulled on his
Sgt. Beane came upstairs into the bedroom, handcuffed and
arrested Hawks. The police searched Hawks and found a meth
pipe in his pants pocket.
Jeremy Hawks had a rental agreement with James Sisco for the
upstairs of the house. He paid $50.00 per week. Everything
upstairs was his. No one else lived upstairs. Dana Ray lived
downstairs in a bedroom next to Sisco. The sheet or curtain
across the doorway upstairs was to separate his living area
from the others in the house. Another sheet may have
separated the sleeping area of the room. The police never
asked permission to enter his separate living area. Officer
Johnson came through the sheets into the sleeping area
without saying anything.
(Doc. # 35 at 1-3.)
4} Based on the foregoing facts, the trial court
engaged in the following analysis and reached ...