[Cite as State v. Jones, 2016-Ohio-7831.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2015-09-172

                                                  :            OPINION
    - vs -                                                     11/21/2016
                                                  :

RICKEY D. JONES,                                  :

        Defendant-Appellant.                      :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                           Case No. CR15-01-0139



Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Repper, Pagan, Cook, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio
45044, for defendant-appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, Rickey Jones, appeals the decision of the Butler County

Court of Common Pleas, denying his motion to suppress evidence obtained from a search of

a residence. For the reasons detailed below, we affirm.

        {¶ 2} On February 4, 2015, appellant was indicted on: (1) one count of trafficking in

marijuana in violation of R.C. 2925.03, a third-degree felony, (2) two counts of possession of
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marijuana in violation of R.C. 2925.11, both third-degree felonies, and (3) permitting drug

abuse in violation of R.C. 2925.13, a fifth-degree felony.

       {¶ 3} The charges stemmed from an investigation involving a large scale marijuana

trafficking organization throughout the Greater Cincinnati area. Following an investigation,

Detective James Whitehouse prepared an affidavit in support of a search warrant for 6223

Zoellners Place in Hamilton, Ohio, a residential property suspected as a possible marijuana

distribution point.

       {¶ 4} The affidavit identified Aris Trammell as the primary resident of that address. In

addition, Detective Whitehouse averred that law enforcement officials had conducted a trash

pull on the premises and found evidence of marijuana trafficking. Furthermore, the affidavit

included information about appellant and his prior history in drug trafficking. The information

contained in Detective Whitehouse's affidavit provided that: (1) appellant's vehicle had been

identified at Trammel's residence, (2) appellant had been seen entering Trammel's

residence, and (3) appellant had been seen speaking with unidentified drivers in Trammel's

driveway.    Based upon all of the information gathered in the investigation, Detective

Whitehouse averred that he believed that probable cause existed that appellant and

Trammell were using the residence to store and distribute marijuana and the monetary

proceeds from those sales.

       {¶ 5} A search warrant was subsequently authorized. The search revealed the

presence of a large scale marijuana operation, and officers recovered more than 5,000

grams of marijuana and other evidence of drug trafficking, including a firearm, a digital scale,

bagging material, and six cell phones.

       {¶ 6} While his criminal charges were pending, appellant filed a motion to suppress.

The trial court denied the motion, reasoning that the affidavit in support of the search warrant

sufficiently established probable cause. Appellant later pled no contest to the trafficking and
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possession charges and was sentenced to an 18-month prison term. Appellant now appeals

the denial of his motion to suppress, raising a single assignment of error for review:

       {¶ 7} THE TRIAL COURT ERRED IN OVERULING THE MOTION-TO-SUPPRESS.

       {¶ 8} In his sole assignment of error, appellant argues the trial court erred by denying

his motion to suppress. However, given our finding that appellant failed to prove that he had

standing to challenge the seizure of marijuana from Trammel's home, we find that the trial

court did not err in denying his motion.

       {¶ 9} Appellate review of a ruling on a motion to suppress presents a mixed question

of law and fact. State v. Brannon, 12th Dist. Clinton No. CA2014-09-012, 2015-Ohio-1488, ¶

24. When considering a motion to suppress, the trial court, as the trier of fact, is in the best

position to weigh the evidence in order to resolve factual questions and evaluate witness

credibility. State v. Cruz, 12th Dist. Preble No. CA2013-10-008, 2014-Ohio-4280, ¶ 12.

Therefore, when reviewing the denial of a motion to suppress, a reviewing court is bound to

accept the trial court's findings of fact if they are supported by competent, credible evidence.

State v. Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 19. "An appellate

court, however, independently reviews the trial court's legal conclusions based on those facts

and determines, without deference to the trial court's decision, whether as a matter of law,

the facts satisfy the appropriate legal standard." State v. Durham, 12th Dist. Warren No.

CA2013-03-023, 2013-Ohio-4764, ¶ 14.

       {¶ 10} The Fourth Amendment to the United States Constitution and Article I, Section

14 of the Ohio Constitution protect individuals from unreasonable governmental searches

and seizures. State v. Grant, 12th Dist. Preble No. CA2014-12-014, 2015-Ohio-2464, ¶ 13.

Fourth Amendment privacy rights are "personal rights which, like some other constitutional

rights, may not be vicariously asserted." Rakas v. Illinois, 439 U.S. 128, 133-134, 99 S.Ct.

421 (1978). As such, a person who alleges error by the use of evidence taken from
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someone else's property cannot claim that his own rights have been violated. State v.

Coleman, 45 Ohio St.3d 298, 306 (1989). Only those whose personal rights have been

violated can raise Fourth Amendment claims. Id.; State v. Rodriguez, 12th Dist. Butler No.

CA2015-02-024, 2016-Ohio-452, ¶ 13. Thus, in order to challenge a search or seizure on

Fourth Amendment grounds, a defendant must possess a legitimate expectation of privacy in

the area searched, and the burden is upon the defendant to prove facts sufficient to establish

such expectation. State v. Graves, 12th Dist. Clermont No. CA2015-03-022, 2015-Ohio-

3936, ¶ 10.

       {¶ 11} In limited circumstances, a person may have an expectation of privacy in the

house of someone else, such as an overnight guest in the residence. Rodriguez at ¶ 14,

citing Minnesota v. Carter, 525 U.S. 83, 89, 119 S.Ct. 469 (1998). However, "one who is

merely present with the consent of the householder may not" claim a reasonable expectation

of privacy in the home of another. Id.; State v. Renner, 12th Dist. Clinton No. CA2002-08-

033, 2003-Ohio-6550, ¶ 10.

       {¶ 12} In the instant case, appellant did not present any evidence that he had a

reasonable expectation of privacy in Trammell's home. The only facts relating to appellant's

involvement at Trammel's home were provided in Detective Whitehouse's affidavit. As

previously noted, Detective Whitehouse averred (1) appellant's vehicle had been identified at

Trammel's residence, (2) appellant had been seen entering Trammel's residence, and (3)

appellant had been seen speaking with unidentified drivers in Trammel's driveway. There

was no evidence that appellant lived at Trammel's residence, stayed there, was a guest

there, or had ever been inside the home more than the one time referenced in the affidavit.

As appellant failed to establish a privacy interest in Trammel's home, we find he lacks

standing to object to the search. See e.g., Renner at ¶ 10-11; Coleman at 306.

       {¶ 13} During oral argument the parties disputed whether the state had preserved the
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issue of standing, as the state first raised the issue of standing in its opening appellate brief.

The state cited United States v. Noble, 762 F.3d 509, 528 (6th Cir. 2014), for the proposition

that the government preserves its right to contest standing if raised during its opening brief.

While the issue of whether the government may forfeit or waive its objection to standing

remains unsettled, that specific issue is not presently before this court. See, e.g., Id.

(referencing the split of authority and holding "if the government fails to raise the issue of

standing in its opening brief on appeal, then the objection is waived"). The well-established

law provides that, in these instances, the defendant has the burden of proving that he had a

legitimate expectation of privacy in the area searched. State v. Dennis, 79 Ohio St.3d 421,

426 (1997), citing Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556 (1980); State v.

Williams, 73 Ohio St.3d 153, 166 (1995); State v. Campbell, 12th Dist. Butler Nos. CA2014-

02-048 and CA2014-02-051, 2014-Ohio-5315, ¶ 16; Rodriguez, 2016-Ohio-452 at ¶ 13.

Here, appellant failed to present any evidence to show a legitimate interest of privacy in

Trammel's home.

       {¶ 14} Because the motion to suppress was properly denied on the basis of standing

alone, we need not address appellant's remaining arguments. Appellant's sole assignment

of error is overruled.

       {¶ 15} Judgment affirmed.


       M. POWELL, P.J., and HENDRICKSON, J., concur.




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