[Cite as State v. Henize, 2019-Ohio-5202.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                      :

                 Plaintiff-Appellee,                :               No. 19AP-89
                                                                 (C.P.C. No. 18CR-1028)
v.                                                  :
                                                               (REGULAR CALENDAR)
Alexander F. Henize,                                :

                 Defendant-Appellant.               :



                                             D E C I S I O N

                                   Rendered on December 17, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
                 Prichard, for appellee. Argued: Sheryl L. Prichard.

                 On brief: Campbell Law, LLC, and April F. Campbell, for
                 appellant.

                  APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
        {¶ 1} Defendant-appellant, Alexander F. Henize, appeals from a judgment of the
Franklin County Court of Common Pleas convicting him of multiple drug-related offenses.
For the following reasons, we affirm.
I. Facts and Procedural History
        {¶ 2} On March 2, 2018, the Franklin County Grand Jury indicted Henize on two
counts of illegal manufacture of drugs in violation of R.C. 2925.04; five counts of aggravated
trafficking in drugs in violation of R.C. 2925.03; three counts of aggravated possession of
drugs in violation of R.C. 2925.11; one count of improperly handling firearms in a motor
vehicle in violation of R.C. 2923.16; one count of possession of heroin in violation of R.C.
2925.11; two counts of receiving proceeds of an offense subject to forfeiture proceedings in
No. 19AP-89                                                                              2


violation of R.C. 2927.21; one count of trafficking in heroin in violation of R.C. 2925.03;
and one count of endangering children in violation of R.C. 2919.22. A firearm specification
was attached to most of the offenses. Henize initially pleaded not guilty, and he moved to
suppress evidence against him that led to multiple charges in the indictment.
       {¶ 3} In May 2018, the trial court held a suppression hearing, and the following
three individuals testified: Columbus Division of Police Officers Nathaniel Harp and David
Schulz, and Vania Ramirez-Chavez.        Their testimony related to the circumstances
surrounding Officer Harp's opening of a closed Home Depot bucket during a search at the
residence of Henize and Ramirez-Chavez on December 26, 2017.
       {¶ 4} Officers Harp and Schulz both testified that, sometime during the first few
hours of December 26, 2017, they were dispatched to 3894 Preserve Crossing Boulevard in
Columbus based on a report of domestic violence. It was reported that the victim, later
identified as Ramirez-Chavez, was being held at gunpoint by her boyfriend, later identified
as Henize. When the officers arrived at the scene, Ramirez-Chavez's mother flagged them
down and provided very similar information to what had been reported earlier. Officer
Harp could see Ramirez-Chavez holding a young child at a third-floor window of the three
story townhome-style apartment. The officers asked her to come down and talk to them.
Ramirez-Chavez indicated that she could not comply with that request because Henize, who
had a firearm, was holding her against her will.
       {¶ 5} Officer Harp instructed other officers to position themselves for a possible
barricade situation, and they started the process of evacuating the area. Approximately 20
minutes later, Henize came to the third story window and communicated with Officer Harp,
who convinced Henize to exit the apartment. It took Henize longer than necessary to exit
the apartment, but when he did, the officers arrested him. Once Henize was arrested, the
officers cleared the apartment to make sure there were no other threats to their or the
victim's safety. They began to interview Ramirez-Chavez on the second floor of the
apartment. Ramirez-Chavez indicated to the officers that she resided with Henize at the
apartment and further stated that Henize had held a gun to her head and threatened to kill
her. The officers therefore were interested in recovering the weapon as part of their
investigation of Henize's conduct.
No. 19AP-89                                                                                  3


       {¶ 6} According to the officers' testimony, Ramirez-Chavez was asked if the officers
could search for the firearm, and she consented to that search. She also indicated to the
officers that the weapon that had been used was somewhere on the second floor of the
apartment, which is where the kitchen was located. "She said that [the officers] could
search whatever [they] needed to find the handgun." (May 7, 2018 Tr. at 38.) One of the
officers discovered a rifle on top of a cabinet in the kitchen and displayed it to her. She
indicated that the rifle was not the weapon Henize had used against her because he had
used a much smaller firearm. As they continued the search for the weapon that had been
held to her head, Officer Harp noticed an orange Home Depot bucket on the floor of the
kitchen. The bucket, which had a lid, seemed out of place and was more than sufficient size
to hold a handgun. Officer Harp opened the lid to reveal a handgun, drugs, and cash. Upon
making this discovery, the officers halted the search and contacted their supervisor. Once
a search warrant was obtained, Officer Harp assisted a narcotics detective in conducting a
more thorough search of the apartment.
       {¶ 7} Ramirez-Chavez was called as a witness on behalf of Henize. Ramirez-
Chavez, Henize's live-in girlfriend and mother to his child, testified that they had a domestic
dispute on the night he was arrested. Henize had been financially supporting her for the
previous three years. According to Ramirez-Chavez's testimony, she informed the police
that a firearm was involved in the domestic dispute, but she did not tell them the type of
firearm. She directed the police to the area above a cupboard where they retrieved a
firearm. The police did not ask Ramirez-Chavez if the firearm retrieved was the one used
in the dispute, and they did not seek consent to conduct an additional search for another
firearm. She acknowledged at the hearing that the firearm retrieved above the cabinetry
was not the one Henize had placed at her head that night. She additionally testified that
she did not give consent for the police to search the inside of the Home Depot bucket. She
added, "I don't even recall an orange Home Depo[t] bucket." (May 7, 2018 Tr. at 46.)
       {¶ 8} In June 2018, the trial court overruled Henize's motion to suppress, finding
that the challenged search was lawful because Ramirez-Chavez voluntarily consented to it.
Henize subsequently entered a plea of no contest to the offenses charged in the indictment.
In January 2019, the trial court entered judgment convicting Henize of those offenses and
sentencing him to a total of 18 years in prison. In August 2019, the trial court corrected the
No. 19AP-89                                                                                 4


January 2019 judgment entry to properly reflect that Henize pleaded no contest to the
charges, instead of guilty as originally indicated.
       {¶ 9} Henize timely appeals.
II. Assignment of Error
       {¶ 10} Henize assigns the following error for our review:
              Henize's motion to suppress should have been granted:
              Ramirez-Chavez had no apparent authority to allow the officers
              to open the Home Depot bucket without a warrant.
III. Discussion
       {¶ 11} In his sole assignment of error, Henize asserts the trial court erred in denying
his motion to suppress. Henize contends that Ramirez-Chavez did not have apparent
authority to permit the officers to search the contents of the Home Depot bucket, and that
no other exception applied to permit the search. In particular, he asserts there was no
evidence that the Home Depot bucket was subject to mutual use, the plain view doctrine
did not apply to cure the warrantless search of the bucket, the search was not authorized as
a search incident to arrest, and the officers conceded that there was no officer safety
concern, no destruction of evidence concern, or a risk of an ongoing emergency. This
assignment of error lacks merit.
       {¶ 12} " '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. Consequently, an appellate court must accept the trial court's
findings of fact if they are supported by competent, credible evidence. 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.' "
(Citations omitted.) State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100, quoting
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
       {¶ 13} The Fourth Amendment to the United States Constitution as applied to the
states through the Fourteenth Amendment, as well as Article I, Section 14, of the Ohio
Constitution, prohibits the government from conducting warrantless searches and seizures,
rendering them per se unreasonable unless an exception applies. State v. Mendoza, 10th
No. 19AP-89                                                                                5


Dist. No. 08AP-645, 2009-Ohio-1182, ¶ 11, citing Katz v. United States, 389 U.S. 347, 357
(1967), superseded by statute on other grounds; see Collins v. Virginia, 138 S.Ct. 1663,
1670 (2018) (search of a home absent a warrant is "presumptively unreasonable"). Thus,
"[w]hen a defendant moves to suppress evidence recovered during a warrantless search,
the state has the burden of showing that the search fits within one of the defined exceptions
to the Fourth Amendment's warrant requirement." State v. Banks-Harvey, 152 Ohio St.3d
368, 2018-Ohio-201, ¶ 18, citing Athens v. Wolf, 38 Ohio St.2d 237, 241 (1974).
       {¶ 14} "One specifically established exception to the warrant requirement is 'a
search that is conducted with consent.' " State v. Hawkins, 10th Dist. No. 15AP-35, 2016-
Ohio-1404, ¶ 98, quoting State v. Portman, 2d Dist. No. 2013-CA-68, 2014-Ohio-4343,
¶ 11, citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). "Further, '[c]onsent to
search can be "obtained, either from the individual whose property is searched, or from a
third party who possesses common authority over the premises." ' " Hawkins at ¶ 98,
quoting Portman at ¶ 11, quoting Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). Thus,
when a third party who possesses common authority over the property voluntarily consents
to the search, law enforcement officers may conduct a search without a warrant. Hawkins
at ¶ 98, citing State v. Reynolds, 9th Dist. No. 19062, 1999 Ohio App. LEXIS 5005 (Oct. 27,
1999), citing United States v. Matlock, 415 U.S. 164 (1974). " ' "Common authority" exists
when two or more persons have joint access or control over the property, each has the right
to consent to permit inspection, and each has assumed the risk that any one of them might
so consent.' " Hawkins at ¶ 98, quoting Reynolds, citing Matlock at 172, fn. 7.
       {¶ 15} Moreover, " '[e]ven if an officer erroneously believes that a third-party is
authorized to give consent, using an objective standard, third-party consent is valid if an
officer looking at the then-available facts could reasonably conclude that the third-party
had apparent authority to consent.' " Hawkins at ¶ 99, quoting Portman at ¶ 13. "The
standard for measuring the scope of a [person's] consent under the Fourth Amendment is
that of 'objective' reasonableness -- what would the typical reasonable person have
understood by the exchange between the officer and the [consenting person]?" Florida v.
Jimeno, 500 U.S. 248, 251 (1991), citing Illinois v. Rodriguez, 497 U.S. 177 (1990). "The
scope of a search is generally defined by its expressed object." Id. Regarding the search of
a container, such a search "is effective only when given by one with common authority over"
No. 19AP-89                                                                                 6


the "effects sought to be inspected." (Citation omitted.) State v. Bell, 8th Dist. No. 62325,
1993 Ohio App. LEXIS 2383 (May 6, 1993); see United States v. Melgar, 227 F.3d 1038,
1041 (7th Cir.2000) (a person with common authority over the premises is presumed to
have authority over closed containers found there, unless the police receive positive
information to the contrary). Therefore, the scope of a consent to search an area for an
object extends to the area in which the object of the search may be found and generally
includes the opening of containers where that object reasonably may be secreted within
that area. See Jimeno.
       {¶ 16} In Jimeno, the police officer informed the suspect that he believed the suspect
"was carrying narcotics, and that he would be looking for narcotics in the [suspect's car]."
Id. at 251. The suspect granted the police officer permission to search his car, and "did not
place any explicit limitation on the scope of the search." Id. In view of these circumstances,
the United States Supreme Court concluded that "it was objectively reasonable for the
police to conclude that the general consent to search respondents' car included consent to
search containers within that car which might bear drugs." Id. The Jimeno court further
explained, "[a] suspect may of course delimit as he chooses the scope of the search to which
he consents. But if his consent would reasonably be understood to extend to a particular
container, the Fourth Amendment provides no grounds for requiring a more explicit
authorization." Id. at 252.
       {¶ 17} At issue here is whether Ramirez-Chavez had apparent authority to give
consent for the officer's search of the closed Home Depot bucket in the kitchen of the
apartment where she and Henize lived together. We find the evidence indicated she had
authority to consent to a search of the apartment for the firearm that Henize used against
her in the domestic dispute, and that the scope of the consent she gave included authorizing
the police to look in places where that firearm reasonably could be secreted, which included
the bucket. According to Henize, Ramirez-Chavez was unaware of the presence of the
bucket in the apartment and the container was not subject to mutual use. However, the
police officers had no information to suggest that a bucket on the floor of the kitchen of the
apartment they shared was not subject to mutual use. Compare State v. Johnson, 7th Dist.
No. 15 JE 20, 2017-Ohio-5708, ¶ 23-24 (court concluded that the searching officers had at
least some knowledge that the book bag subject to the search might belong to a non-
No. 19AP-89                                                                               7


consenting person based on a prior interaction, thus undermining the trial court's
determination that the consenting person had common or apparent authority over the bag).
Furthermore, unlike a suitcase, backpack, purse, or other similar container, utility buckets
are not commonly used to hold personal effects. Even so, utility buckets typically are of a
size that could hold a handgun. On these facts, the search of the Home Depot bucket in the
kitchen of the apartment was reasonable. Because the search was conducted with consent,
it is unnecessary to analyze Henize's arguments concerning other exceptions to the warrant
requirement.
       {¶ 18} Because the trial court did not err in denying Henize's motion to suppress,
we overrule his sole assignment of error.
IV. Disposition
       {¶ 19} Having overruled Henize's sole assignment of error, we affirm the judgment
of the Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.

                           SADLER and NELSON, JJ., concur.
