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State v. Hawks

Court of Appeals of Ohio, Second District, Montgomery

June 14, 2019

STATE OF OHIO Plaintiff-Appellant
v.
JEREMY W. HAWKS Defendant-Appellee

          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

          PETER CERTO, JR., Atty. Reg. No. 0018880, Attorney for Defendant-Appellee

          OPINION

          HALL, J.

         {¶ 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 was located.

         {¶ 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 them.
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 pants.
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 ...


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