[Cite as State v. Rodriguez, 2013-Ohio-491.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98422




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                  JOSE O. RODRIGUEZ
                                                     DEFENDANT-APPELLANT




                              JUDGMENT:
                   REVERSED, VACATED, AND REMANDED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-549976

        BEFORE: S. Gallagher, J., Stewart, A.J., and Boyle, J.

        RELEASED AND JOURNALIZED: February 14, 2013
ATTORNEY FOR APPELLANT

Michael J. Cheselka, Jr.
Michael J. Cheselka, Jr., LLC
75 Public Square, Suite 920
Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Marc D. Bullard
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:

       {¶1} Appellant, Jose O. Rodriguez, appeals from his conviction and sentence in

the Cuyahoga County Court of Common Pleas. For the reasons stated herein, we reverse

the judgment of the trial court, vacate appellant’s convictions and sentence, and remand

the matter for further proceedings consistent with this opinion.

       {¶2} On May 20, 2011, appellant was charged under an eight-count indictment

with three counts of trafficking, three counts of drug possession, one count of tampering

with evidence, and one count of possessing criminal tools, all with accompanying

specifications. Appellant entered a plea of not guilty to the indictment. Thereafter, he

filed a motion to suppress evidence based upon an illegal search and seizure and

warrantless entry.

       {¶3} At the suppression hearing, testimony was presented that reflected the

following. On May 3, 2011, members of the Northern Ohio Violent Fugitive Task Force

were looking for a federal escapee, Juan Colon, who had cut off his ankle bracelet and

left his residence.     The state represented that “the marshals then did issue a

memorandum, which gave the [U.S. Marshals Service] the authority to go looking for the

escaped federal prisoner.” During their investigation, they came upon a possible location

for Colon at 3360 Seymour Avenue in Cleveland. There was testimony that the marshals

“had a tip that [Colon] was possibly at that residence.” At least eight members of the

task force went to this location.
       {¶4} As task-force officers knocked on the front door and announced “police,”

Deputy U.S. Marshal Ryan Helfrich observed a male run down the stairs, cross in front of

the window, and run back upstairs. Within minutes, Dep. Helfrich heard over the radio

that a window had opened and closed, which was a concern that the person they were

looking for might jump out a window.

       {¶5} A Hispanic woman, Carmen Ruiz, answered the door.              Dep. Helfrich

testified that the marshals were granted permission to enter the home; however, he did not

hear the woman speak and did not know whether she spoke English. He indicated that

he did not believe anyone present on the task force spoke Spanish.

       {¶6} During a search of the home, an odor of marijuana was detected in the

basement. In the basement was a stack of tires, which was approximately four feet tall,

where the odor of marijuana was stronger. Upon looking into the tires to see if anyone

was hiding in them, task force members observed an open shopping bag containing

plastic bags of marijuana.       Appellant, Ruiz, Meraly Rodriguez, who is Colon’s

ex-girlfriend, and appellant’s girlfriend were at the home on this date.

       {¶7} Another member of the task force, Tyshawn Irby, testified that he was

covering the front of the house as other members of the task force were preparing to

knock on the door. He heard an upstairs window of the subject house open, and when he

yelled “hey,” he heard the window close. A few minutes later, a gentleman tried to come

out of a neighboring house, and Irby asked him to go back inside until the area was

secure. After the house was secured, the neighbor came back outside and pointed to a
bag that contained cocaine, which was in the yard near the area of the window. The

neighbor’s home was very close to the subject home, and the neighbor was not questioned

about the drugs.

      {¶8} Cleveland Police Detective Joseph Dimuzio responded to the location to

assist with the investigation. Upon arriving, Det. Dimuzio was briefed by Cleveland

Police Lieutenant Petkac.     Det. Dimuzio was advised that appellant, after being

Mirandized, had admitted the drugs in the house were his. Det. Dimuzio testified that he

approached appellant, who was in custody in a police vehicle.          He stated that he

Mirandized appellant and appellant indicated he wished to answer some questions. Det.

Dimuzio indicated that appellant admitted the bag of cocaine found outside the house was

his and that he had thrown it out the window. Det. Dimuzio admitted that appellant’s

statement was made after being told the police could arrest everyone in the house.

      {¶9} After obtaining a search warrant, Det. Dimuzio returned to the scene and

performed a detailed search of the home.         As a result of this search, additional

contraband, drug paraphernelia, and $260 in U.S. currency were found in the home. Det.

Dimuzio testified that after appellant was taken to the police station, he was again read

his Miranda rights. Det. Dimuzio stated that appellant initially exhibited a willingness to

participate in the investigation, but then indicated he did not desire to speak anymore.

No statement was ever signed by appellant to indicate he waived his Miranda rights.

      {¶10} Cleveland Police Detective Michael Alexander testified that after appellant

was given his Miranda rights, appellant admitted that he had thrown the drugs out of the
window and that the marijuana inside of the house was his. Det. Alexander admitted that

he did not make a report of these statements.

       {¶11} Carmen Ruiz was questioned with the use of an interpreter after expressing

that she understood little English. She testified that Miraly Rodriguez and appellant,

who are her daughter and son, lived with her at 3360 Seymour Avenue in Cleveland.

She provided the following testimony as to what transpired at her door on May 3, 2011:

       Q.     Now I’m going to call your attention to I believe it was May 3rd, when Jose
              was arrested. Now, did anything unusual happen that day?
       A.     [The police] went to look for somebody.
       Q.     Did somebody knock on the door?
       A.     Yes.
       Q.     And when they knocked, did they talk to someone?
       A.     With Jose.
       Q.     Did they talk with you?
       A.     No. [Ruiz] opened the door, it was two doors, she opened the first
              door. And he — she didn’t understand, so he spoke to Jose in the
              second door.
       Q.     And so the conversation was with Jose?
       A.     With Jose, but she was next to him.
       Q.     Okay. Was Jose telling you what was going on during this point in
              time?
       A.     Yes. Jose was saying to him that that person they were looking for
              did not live there.
       Q.     Did you know that person?
       A.     Yes.
       Q.     And his name was Juan Colon, correct?
       A.     Yes.
       Q.     Do you know Juan Colon?
       A.     Yes.
       Q.     Who is it?
       A.     Was the boyfriend of her daughter.
       Q.     Did — how did the police get into your house?
       A.     They knocked on the windows and the door and she looked. She
              told Jose the police is here, but she didn’t know what was going on,
              until the police said they were looking for Juan Colon, that they
              thought he lived there, but he doesn’t live there.
       Q.     Did you ever give them permission, yourself, to come into your
              home?
       A.     No. She never gave them permission that — they were talking to
              Jose, and they just were entering.
       Q.     When you say they just were entering, I don’t understand that.
              What do you mean by that?
       A.     She says that they were just kind of walking into the house, speaking
              to Jose. They just kind of kept talking and walking into the house.
       Q.     Did there come a time that the police said something to you?
       A.     That they wanted to take her and arrest her.
       Q.     Who translated this for you, or did you understand it?
       A.     She only understood “mother,” but the rest her daughter told her.

       {¶12} Ruiz further testified as follows concerning Colon:

       Q.     You stated that Juan Colon dated your daughter?
       A.     They were * * * [b]oyfriends/girlfriends, yes.
       Q.     Had Juan Colon been in your house on previous days?
       A.     He only went two or three times for a bit and then never again. But
              a long time — a long, long time ago.
       Q.     How many times has he been in your house?
       A.     Three times, approximately. Around three times.

       {¶13} Judy Blair, who is appellant’s girlfriend, testified that the police asked

appellant if he was going to make a written statement saying the drugs were his and

appellant said no and asked to speak to a lawyer. She never heard appellant get read his

Miranda rights.

       {¶14} After the suppression hearing, the trial court denied the motion to suppress.

The matter proceeded to trial; however, following jury selection, appellant informed the

court that he wished to enter a plea of no contest.

       {¶15} Thereafter, appellant entered a plea of no contest to all eight charges of the

indictment, and the trial court entered a finding of guilt on said charges with

accompanying specifications.      Following merger of allied offenses, the trial court
imposed a total prison term of three years plus five years of mandatory postrelease

control.

       {¶16} Appellant timely filed this appeal, raising two assignments of error for our

review. His first assignment of error provides as follows:

       The trial court erred in its denial of appellant’s motion to suppress and,
       thereby, incorrectly continued proceedings as against him and, therewith,
       violated his constitutional rights to a fair trial.

       {¶17} In State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶

8, the Ohio Supreme Court set forth the following review standard for a motion to

suppress:

              Appellate review of a motion to suppress presents a mixed question
       of law and fact. When considering a motion to suppress, the trial court
       assumes the role of trier of fact and is therefore in the best position to
       resolve factual questions and evaluate the credibility of witnesses. State v.
       Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. Consequently, an
       appellate court must accept the trial court’s findings of fact if they are
       supported by competent, credible evidence. State v. Fanning (1982), 1
       Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583.

             Accepting these facts as true, the appellate court must then

       independently determine, without deference to the conclusion of the trial

       court, whether the facts satisfy the applicable legal standard.     State v.

       McNamara (1997), 124 Ohio App.3d 706, 707 N.E.2d 539.

       {¶18} “[F]or Fourth Amendment purposes, an arrest warrant founded on probable

cause implicitly carries with it the limited authority to enter a dwelling in which the

suspect lives when there is reason to believe the suspect is within.” Payton v. New York,

445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). However, in order to search
for the subject of an arrest warrant in the home of a third party, a search warrant must be

obtained, absent exigent circumstances or consent. Steagald v. United States, 451 U.S.

204, 205, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981).

       {¶19} In this case, it was represented that the U.S. Marshals had a “memorandum”

that gave them the authority to go looking for Colon. Even assuming that an arrest

warrant was actually issued, the state failed to establish there was a reasonable belief that

Colon was within the subject residence. The only evidence presented was testimony that

the U.S. Marshals “had a tip that [Colon] was possibly at that residence.” Nothing was

provided as to the details of the tip or to establish its reliability. Nor was it shown that

any steps were taken to independently corroborate the tip. Further, Ruiz testified that

Colon was not at her home. She further indicated that her daughter and Colon had been

boyfriend and girlfriend, but Colon had been at her home only two or three times, a long

time ago. Thus, it was never established that Colon frequented this location. Under

these circumstances, the officers did not have reason to believe that Colon would be

found within the home.

       {¶20} Additionally, no exigent circumstances were shown to justify the entry.

The prosecutor argued during the oral hearing that the cocaine found outside the

residence that was pointed out by a neighbor to the police formed the basis for an entry

based on exigent circumstances. We disagree. While officers claimed they heard a

window open and close and the prosecution theorized that the cocaine was thrown from

the window, no one actually witnessed that transpire. Dep. Helfrich testified that it
actually was a concern that the person they were looking for might jump out the window.

Further, the neighbor did not point out the bag to the police until after the residence was

secure. Thus, insofar as contraband was found near the window outside the home, it was

not discovered until after the unlawful intrusion occurred and could not form the basis for

exigent circumstances.

       {¶21} Finally, there was no evidence that Ruiz consented in any manner to the

officers’ entry into her home. The government bears the burden of proving voluntary

consent, and this burden is heavier when it appears the owner does not readily speak and

understand the English language. United States v. Hernandez, 443 Fed.Appx. 34, 40 (6th

Cir.2011), citing Kovach v. United States, 53 F.2d 639 (6th Cir.1931).          Moreover,

“‘[c]onsent must be proved by clear and positive testimony and must be unequivocal,

specific, and intelligently given, uncontaminated by any duress and coercion.’”

Hernandez at 40, quoting United States v. Williams, 754 F.2d 672, 674-675 (6th

Cir.1985). The state failed to meet its burden in this case.

       {¶22} Dep. Helfrich testified that the marshals were granted permission to enter

the home, yet he did not hear Ruiz speak and did not know whether she spoke English.

He also indicated that he did not believe anyone present on the task force spoke Spanish.

Ruiz, who speaks Spanish, testified that she did not understand the officers, she never

gave them permission to enter, and the officers just walked into her home. Thus, the

evidence before the trial court reflected that the search was nonconsensual.
       {¶23} All evidence that has been illegally obtained in violation of the Fourth

Amendment is barred by the Exclusionary Rule. Mapp v. Ohio, 367 U.S. 643, 654, 81

S.Ct. 1684, 6 L.Ed.2d 1081 (1961). “The exclusionary rule reaches not only primary

evidence obtained as a direct result of an illegal search or seizure, but also evidence that

is subsequently discovered and derivative of that prior illegality.” State v. McLemore,

197 Ohio App.3d 726, 2012-Ohio-521, 968 N.E.2d 612, ¶ 20 (2d Dist.). Thus,

       [t]he derivative-evidence rule, or fruit-of-the-poisonous-tree doctrine as it is
       widely known, requires suppression of evidence that was seized in a
       seemingly lawful manner but about which police learned because of a prior
       constitutional violation such as an illegal search or seizure. Id.

       {¶24} Accordingly, we find the trial court’s determination was not supported by

competent, credible evidence in the record and that the evidence seized from Ruiz’s home

and the statements made by appellant were the result of an illegal search and seizure.

Appellant’s first assignment of error is sustained. The remaining assignment of error,

which pertains to appellant’s sentence, is moot. App.R. 12(A)(1)(c).

       {¶25} Judgment reversed, convictions and sentence vacated, and cause remanded.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE

MELODY J. STEWART, A.J., and
MARY J. BOYLE, J., CONCUR
