[Cite as State v. French, 2020-Ohio-3653.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO,                               :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellant                :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
KEVIN FRENCH                                 :       Case No. 2020-CA-0002
                                             :
        Defendant - Appellee                 :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Richland County
                                                     Court of Common Pleas, Case No.
                                                     2019-CR-449



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    July 8, 2020




APPEARANCES:

For Plaintiff-Appellant                              For Defendant-Appellee

GARY BISHOP                                          DARIN AVERY
Prosecuting Attorney                                 105 Sturges Avenue
Richland County, Ohio                                Mansfield, Ohio 44903


By: JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2020-CA-0002                                              2



Baldwin, J.

       {¶1}   Plaintiff-appellant State of Ohio appeals from the January 3, 2020 Judgment

Entry granting the Motion to Suppress filed by defendant-appellee Keven French.

                        STATEMENT OF THE FACTS AND CASE

       {¶2}   On June 24, 2019, the Richland County Grand Jury indicted appellee on

one count of possession of heroin in violation of R.C. 2925.11(A) & (C)(6)(c), a felony of

the third degree, one count of possession of a fentanyl-related compound in violation of

R.C. 2925.11(A) and (C)(11)(c), a felony of the third degree, and one count of possession

of cocaine in violation of R.C. 2925.11(A) and (C)(4)(a), a felony of the fifth degree. The

indictment also contained forfeiture specifications. At his arraignment on July 9, 2019, a

waiver of arraignment was filed.

       {¶3}   Appellee, on September 12, 2019, filed a Motion to Suppress and/or

Dismiss. A suppression hearing was held on December 30, 2019.

       {¶4}   At the suppression hearing, Patrolman Nicholas Stevens of the Mansfield

Police Department testified that, on May 25, 2019, he was dispatched to a single-family

home in Mansfield in response to a report that a male in a silver Pontiac was overdosed.

When he arrived on the scene, he found appellee in the driver’s seat of the car in the

driveway. Appellee was conscious but “kind of out of it,” had slurred speech, was lethargic

and staring blankly. Transcript at 5. Appellee did not need to be transported to the

hospital. Officer Scott Kotterman also arrived on the scene and the officers interviewed

appellee. Appellee became upset when he learned that the police would search his car

and started swearing.
Richland County, Case No. 2020-CA-0002                                                 3


       {¶5}   Appellee was arrested for intoxication and for marijuana that he admitted

was in his car. At that point, the officer had no intention of going into the house.

       {¶6}   At some point, appellee’s father showed up and was upset because

appellee had ongoing issues with drugs and getting into trouble with the police. Officer

Kotterman testified that appellee’s father said that he owned the house and wanted “all

this shit out of his house and he wanted [appellee] out of the house….” Transcript at 29.

He asked the police to come inside and do a walk through. The police never asked

appellee if they could search the house.

       {¶7}   Appellee’s father then proceeded to lead Officer Kotterman through the

house. Appellee’s father testified that he was hoping that they would find something to

make appellee go into treatment, such as drugs. During the home tour, Officer Kotterman

located suspected drugs on a dresser and on a cabinet. Appellee’s father indicated that

he wanted the illegal stuff out of the house.

       {¶8}   Appellee’s father testified that he did not reside at the property, but still

owned it. He testified that he had owned the property for almost 30 years and that after

he moved out in 2002 or 2003 after living in it for 10 years, he let appellee have it rent-

free and told him to pay the property taxes. Appellee had not done so for 2018 or 2019.

Appellee’s father retained title to the property, but had not spent the night there and had

nothing to do with the house. He testified that he allowed appellee control over the house

and the premises and had no personal or other items there. He had no keys to the house

and referred to the house as appellee’s. He testified that he was trying to get the junkies

that appellee allowed in the house out of the house. At the time of the hearing, appellee’s

father was trying to evict appellee’s girlfriend from the house.
Richland County, Case No. 2020-CA-0002                                               4


       {¶9}   After the police search of the home, appellee yelled at his father for letting

the police in the house. However, he had not objected prior.

       {¶10} Following the hearing, the trial court, via a Judgment Entry filed on January

3, 2020, granted the Motion to Suppress, finding that appellee’s father did not have

common authority in the residence in order to permit a search of appellee’s home by

consent.

       {¶11} Appellant now appeals, raising the following assignment of error on appeal:

       {¶12} “I. THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION TO

SUPPRESS.”

                                              I

       {¶13} Appellant, in its sole assignment of error, argues that the trial court erred in

granting the Motion to Suppress.

       {¶14} Appellate review of a trial court's decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713

N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role

of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 1996-Ohio-134, 661

N.E.2d 1030. A reviewing court is bound to accept the trial court's findings of fact if they

are supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142,

145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court

must independently determine as a matter of law, without deference to the trial court's

conclusion, whether the trial court's decision meets the applicable legal standard. State
Richland County, Case No. 2020-CA-0002                                               5


v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on other

grounds.

       {¶15} There are three methods of challenging a trial court's ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court's findings of fact are against the manifest weight of the evidence. See State v.

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,

597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed to

apply the appropriate test or correct law to the findings of fact. In that case, an appellate

court can reverse the trial court for committing an error of law. See Williams, supra.

Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final

issues raised in a motion to suppress. When reviewing this type of claim, an appellate

court must independently determine, without deference to the trial court's conclusion,

whether the facts meet the appropriate legal standard in any given case. State v. Curry,

95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).

       {¶16} At issue in this case is whether or not appellee’s father had authority to

consent to the search of the house.

       {¶17} Generally, “searches and seizures inside a home without a warrant are

presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371

(1980). It is a fundamental Fourth Amendment principle, however, that neither a search

warrant nor probable cause is required if valid consent to search, an exception to the

constitutional requirements, is given. Schneckloth v. Bustamonte (1973), 412 U.S. 218,

219, 93 S.Ct. 2041 (1973).
Richland County, Case No. 2020-CA-0002                                                 6


       {¶18} In United States v. Matlock, 415 U.S. 164, 171-72, 94 S.Ct. 988, 39 L.Ed.2d

242 (1974), the Supreme Court held that when the government seeks to justify a

warrantless search by proof of voluntary consent, in the absence of proof that consent

was given by the defendant, it “may show that permission to search was obtained from a

third party who possessed common authority over or other sufficient relationship to the

premises or effects sought to be inspected.” In describing what constitutes common

authority, the Supreme Court explained, “[c]ommon authority is, of course, not to be

implied from the mere property interest a third party has in the property. The authority

which justifies the third-party consent does not rest upon the law of property [.]” Id. at 171,

n. 7, 94 S.Ct. 988. Rather, the Court said, common authority rests “on mutual use of the

property by persons generally having joint access or control for most purposes, so that it

is reasonable to recognize that any of the co-inhabitants has the right to permit the

inspection in his own right and that the others have assumed the risk that one of their

number might permit the common area to be searched.” Id.

       {¶19} In the case sub judice, we agree with the trial court that appellee’s father

did not have common authority in the residence in order to permit a search of appellee’s

home by consent. Appellee’s father had no key to the house, had no property or

possessions there and testified that he gave the house to his son after he moved out after

living there for ten years. Appellee’s father testified that he had had nothing to do with the

house and had not resided there for 16 years.         He testified that he allowed appellee

control over the house and the premises. He testified that while he tried to exert ownership

or control interest over the property as to who went in and lived there, he was not

successful. There was no mutual use of the property by appellee and his father.
Richland County, Case No. 2020-CA-0002                                              7


       {¶20} Appellant contends that the officers reasonably believed, based on

appellee’s father’s claim that he owned the house, that he had common authority legally

sufficient to grant them access. Even if a third party does not possess common authority

to consent to a search, the Fourth Amendment is not violated if the police reasonably

relied on the third party's apparent authority to consent. State v. Norman, 12th Dist.

Warren No. CA2014-02-033, 2014-Ohio-5084, ¶ 38. Apparent authority is judged by an

objective standard. Id. A warrantless search based on apparent authority to consent is

permissible if “ ‘the facts available to the officer at the moment [would] “warrant a man of

reasonable caution in the belief” that the consenting party had authority over the

premises.’ ” Id., quoting Illinois v. Rodriguez, 497 U.S. 177, 1881, 110 S.Ct. 2793, (1990),

in turn quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868 (1968).

       {¶21} There was testimony at the hearing that the officers knew that appellee was

residing at the house, but never established that appellee’s father was living at the

address and that they did not know if he was actually living there. The officers never

discussed with him whether he was living there or had ever resided there. Patrolman

Kaufman, who entered the home first, was not called as a witness so there was no

evidence of his belief in any common authority. Moreover, we agree with the trial court

that the only information that the police had was that appellee’s father owned the

residence and that such information alone does not give the police a reasonable belief of

common authority to justify the search of the home. The officers never confirmed who

resided in the house before entering the same.

       {¶22} We find that the trial court did not err in granting the Motion to Suppress.

       {¶23} Appellant’s sole assignment of error is, therefore, overruled.
Richland County, Case No. 2020-CA-0002                                      8




       {¶24} Accordingly, the judgment of the Richland County Court of Common Pleas

is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Delaney, J. concur.
