[Cite as State v. Roberts, 2014-Ohio-4126.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                       C.A. No.       13CA0065-M

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
BOBBY LEE ROBERTS                                   COURT OF COMMON PLEAS
                                                    COUNTY OF MEDINA, OHIO
        Appellant                                   CASE No.   12CR0679

                                  DECISION AND JOURNAL ENTRY

Dated: September 22, 2014



        BELFANCE, Presiding Judge.

        {¶1}     Bobby Lee Roberts appeals the order of the trial court denying his motion to

suppress. For the reasons set forth below, we affirm.

                                               I.

        {¶2}     Mr. Roberts’ teenage daughter called the police to report that Mr. Roberts had

fired a gun at her and her mother, Synthia Smith. The police responded and took Mr. Roberts

into custody. Upon entering the home, Sergeant Scott Marcum detected the odor of gunpowder

and saw a .40 caliber casing on the floor and an apparent bullet hole in the wall. He asked Ms.

Smith where the guns were kept, and she showed him to a closet in the bedroom. Sergeant

Marcum searched the closet, finding a number of firearms as well as a cigar box that contained

drug paraphernalia. Later testing would reveal that the cigar box also contained trace amounts of

cocaine.
                                                   2


          {¶3}   Mr. Roberts was indicted for possession of a schedule II controlled substance.

Mr. Roberts filed a motion to suppress, which the trial court denied. Mr. Roberts subsequently

pleaded no contest to the indictment, and the trial court sentenced him to three years of

community control. Mr. Roberts has appealed, raising a single assignment of error for our

review.

                                                 II.

                                     ASSIGNMENT OF ERROR

          THE TRIAL COURT SHOULD HAVE GRANTED THE DEFENDANT’S
          MOTION TO SUPPRESS ALL EVIDENCE OBTAINED FROM A
          WARRANTLESS SEARCH OF THE DEFENDANT’S RESIDENCE WHERE
          THE SEARCH WAS BASED UPON THE CONSENT OF A[N] ESTRANGED
          THIRD-PARTY GIRLFRIEND IN VIOLATION OF FOURTH AND
          FOURTEENTH     AMENDMENTS    TO   THE   UNITED    STATES
          CONSTITUTION AND SECTION 14, ARTICLE I OF THE OHIO
          CONSTITUTION. EVEN IF IT CAN BE SHOWN CONSENT EXISTED
          HEREIN, THE CONSENT DID NOT EXTEND TO CONTAINERS WITHIN
          THE RESIDENCE.

          {¶4}   Mr. Roberts argues that the trial court should have granted his motion to suppress

because there was no valid consent to search given by his estranged girlfriend. He further argues

that, even if there was consent to search the closet, Sergeant Marcum did not have consent to

search the cigar box.

          {¶5}   The Supreme Court of Ohio has held that

          [a]ppellate 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.

(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
                                                  3


          {¶6}   The Fourth Amendment to the U.S. Constitution and Article I, Section 14 of the

Ohio Constitution protect individuals from unreasonable searches and seizures. “Searches and

seizures conducted outside the judicial process are per se unreasonable under the Fourth

Amendment, subject to well-delineated exceptions.” State v. Robinson, 9th Dist. Summit No.

26741, 2014-Ohio-579, ¶ 13, citing Katz v. United States, 389 U.S. 347, 357 (1967). “It is

equally well established, however, that a search of property without a warrant or probable cause

but with proper consent having been voluntarily obtained does not violate the Fourth

Amendment.” State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 98. “The question of

whether consent to a search was voluntary or the product of duress or coercion, express or

implied, is a question of fact to be determined from the totality of the circumstances.” Id. at ¶

99. “The standard for measuring the scope of consent under the Fourth Amendment is objective

reasonableness, i.e., what a typical reasonable person would have understood by the exchange

between the officer and the suspect.” Id. See also Florida v. Jimeno, 500 U.S. 248, 251 (1991)

(The scope of consent is defined by the expressed object of the search.).        Furthermore, “‘the

consent of one who possesses common authority over premises or effects is valid as against the

absent, nonconsenting person with whom that authority is shared.’” Fernandez v. California,

___ U.S. ___, 134 S.Ct. 1126, 1133 (2014), quoting United States v. Matlock, 415 U.S. 164, 170

(1974).

          {¶7}   The trial court made the following findings of fact in its journal entry denying Mr.

Roberts’ motion to suppress. Medina City Police officers responded to a 9-1-1 call by Mr.

Roberts’ daughter, who reported that Mr. Roberts had been drinking and had fired a weapon at

them inside the house. Sergeant Marcum arrived at the scene while other officers were arresting

Mr. Roberts and spoke with Ms. Smith. He asked if he could come into the home, and Ms.
                                               4


Smith said that he could. Sergeant Marcum detected the odor of gunpowder in the house and

observed a shell casing on the floor and an apparent bullet hole in the wall. Sergeant Marcum

asked Ms. Smith where the guns were located, and Ms. Smith took him to a closet in the master

bedroom, opening the closet for Sergeant Marcum. Sergeant Marcum searched the closet and

discovered two .40 caliber pistols, an AR-15, and two additional guns. He also found a box

containing loose ammunition. “Ms. Smith told Sergeant Marcum that she wanted the guns

removed from the residence[,]” and Sergeant Marcum took the guns and the box with the loose

ammunition. After a review of the record, we conclude that the trial court’s findings are

supported by competent, credible evidence, and, therefore, we accept them as true.

       {¶8}   In this appeal, the primary question before us is whether the contraband found in

the cigar box was discovered during the course of a search permitted by the Fourth Amendment.

As noted above, an exception to the warrant requirement exists when police officers have

received voluntary consent to conduct a search. Roberts at ¶ 98. Mr. Roberts argues that

Sergeant Marcum did not receive consent to search from Ms. Smith because Ms. Smith’s consent

was not voluntary. Whether consent to a search was voluntary or the product of duress or

coercion, express or implied, is a question of fact to be determined from the totality of the

circumstances. Id. at ¶ 99. See also State v. Robinette, 80 Ohio St.3d 234, 243 (1997), quoting

Schneckloth v. Bustamonte, 412 U.S. 218, 248-249 (“‘Voluntariness is a question of fact to be

determined from all the circumstances[.]’”). Mr. Roberts’ precise argument is unclear, but he

appears to suggest that the consent was invalid because Ms. Smith did not understand her rights.

However, Mr. Roberts does not point to any part of the record that would support his assertion

that Ms. Smith did not know she had the right to refuse, see App.R. 16(A)(7), and our own

review of the record has not uncovered any testimony to that effect. Furthermore, “‘while the
                                                 5


subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not

required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.’”

Robinette at 243, quoting Bustamonte at 249. Nor was Ms. Smith in police custody when she

gave her consent. Compare with Florida v. Royer, 460 U.S. 491, 502 (1983) (“[H]ad Royer

voluntarily consented to the search of his luggage while he was justifiably being detained on

reasonable suspicion, the products of the search would be admissible against him. We have

concluded, however, that at the time Royer produced the key to his suitcase, the detention to

which he was then subjected was a more serious intrusion on his personal liberty than is

allowable on mere suspicion of criminal activity.”). Based upon the totality of the circumstances

as reflected in the record, we cannot conclude that the record supports Mr. Roberts’ contention

that Ms. Smith’s consent was involuntary.

       {¶9}    Mr. Roberts also suggests that Ms. Smith’s consent was invalid because she was

an estranged significant other, perhaps implying that there was an absence of common authority

over the residence. However, Mr. Roberts does not develop this argument, nor does he cite any

portion of the record that could support his assertion that he and Ms. Smith were estranged. See

App.R. 16(A)(7). Similarly, Mr. Roberts asserts, without any support from the record, that the

police entered, exited, and reentered the home, rendering Ms. Smith’s consent invalid. Our

review of the record has not uncovered any evidence from which one could draw the inference

that either of Mr. Roberts’ factual assertions are true. Accordingly, given the evidence in the

record, we cannot conclude that Mr. Roberts’ limited arguments possess merit. See App.R.

16(A)(7); State v. McDonald, 9th Dist. Medina No. 12CA0093-M, 2013-Ohio-4972, ¶ 32.

       {¶10} Mr. Roberts also argues that Ms. Smith’s consent was insufficient to permit

Sergeant Marcum to look inside the cigar box. A consensual search is limited in scope to what
                                                 6


an objectively reasonable person would believe was permitted by the exchange between an

officer and the person giving consent. See Jimeno, 500 U.S. at 251. Ms. Smith testified that she

gave Sergeant Marcum permission to look for firearms in the closet. Furthermore, the trial court

specifically found that, when Sergeant Marcum asked where the firearms were, Ms. Smith took

him to the closet and opened it for him. Thus, we conclude that, at the very least, Ms. Smith

gave Sergeant Marcum permission to search the closet for firearms.1

       {¶11} Thus, the question becomes whether a reasonable person would have understood

Ms. Smith’s consent to search the closet to include opening a cigar box in the closet. “The scope

of a search is generally defined by its expressed object.” Id. This would reasonably include

containers that could contain the object of the search. See id. Ms. Smith testified that she

specifically gave Sergeant Marcum permission to search for guns, and there is no indication that

she limited the scope of the search in any way or that she told Sergeant Marcum how many guns

were in the closet. Furthermore, although Sergeant Marcum did not testify to the size of the

cigar box, Ms. Smith did testify that the box was big enough to contain a handgun. Thus, based

upon the totality of the circumstances reflected in the record before us, Ms. Smith’s consent to

search the closet for firearms, and specifically a handgun, would reasonably include the cigar

box since it could contain the object of the search. See id.

       {¶12} Nevertheless, Mr. Roberts, pointing to Georgia v. Randolph, 547 U.S. 103 (2006),

argues that Sergeant Marcum did not have permission to search the closet because the police had

arrested Mr. Roberts and removed him from the property.          However, we fail to see how

Randolph is applicable in this case. In Randolph, the Supreme Court held “that a physically


       1
        There was conflicting testimony at trial as to whether Ms. Smith gave Sergeant Marcum
permission to search for ammunition as well as the firearms. However, the trial court never
made any findings regarding this testimony.
                                                 7


present inhabitant’s express refusal of consent to a police search is dispositive as to him,

regardless of the consent of a fellow occupant.” Id. at 122-123. However, Mr. Roberts was not

physically present at the house when Ms. Smith gave Sergeant Marcum permission to search,

and, furthermore, there is no evidence that Mr. Roberts ever objected to the search.

       {¶13} Finally, in the absence of valid consent to search, Mr. Roberts further suggests

that the plain view doctrine did not permit Sergeant Marcum to open the cigar box. However,

because we find that, under the circumstances in this case, the scope of Ms. Smith’s consent

reasonably included permission to open the cigar box to search for a firearm, see Jimeno, 500

U.S. at 251, it is unnecessary to determine the propriety of Sergeant Marcum’s actions under the

plain view doctrine.

       {¶14} Accordingly, Mr. Roberts’ assignment of error is overruled.

                                              III.

       {¶15} In light of the foregoing, the judgment of the Medina County Court of Common

Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
                                                8


period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    EVE V. BELFANCE
                                                    FOR THE COURT



HENSAL, J.
WHITMORE, J.
CONCUR.


APPEARANCES:

RUSSELL A. BUZZELLI, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.
