[Cite as State v. Chavez, 2018-Ohio-4351.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 27840
                                                   :
 v.                                                :   Trial Court Case No. 2017-CR-1734/2
                                                   :
 JULIO C. CHAVEZ                                   :   (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                           Rendered on the 26th day of October, 2018.

                                              ...........

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

ADELINA E. HAMILTON, Atty. Reg. No. 0078595, 117 South Main Street, Suite 400,
Dayton, Ohio 45422
      Attorney for Defendant-Appellant

                                             .............




WELBAUM, P.J.
                                                                                         -2-




       {¶ 1} Defendant-appellant, Julio C. Chavez, appeals from his conviction in the

Montgomery County Court of Common Pleas after he pled no contest to possession of

marijuana. In support of his appeal, Chavez contends the trial court erred in overruling

his motion to suppress the drug evidence at issue. For the reasons outlined below, the

judgment of the trial court will be affirmed.



                             Facts and Course of Proceedings

       {¶ 2} On July 11, 2017, Chavez was indicted for possession of marijuana in an

amount equal to or exceeding 200 grams but less than 1,000 grams, in violation of R.C.

2925.11(A). Following his indictment, Chavez filed a motion to suppress, arguing that

an improper search and seizure was conducted in the motel room where the marijuana

was found. On September 1, 2017, the trial court held a hearing on Chavez’s motion to

suppress. At the suppression hearing, the State presented testimony from Sergeant

Jennifer Chiles and Officer Timothy Christian of the Vandalia Police Department. The

officers testified as follows.

       {¶ 3} On May 24, 2017, Officer Christian was monitoring the Super 8 Motel located

at 550 East National Road in Vandalia, Montgomery County, Ohio. As part of his regular

duties, Christian performed random registration checks on the vehicles parked in the

motel parking lot by running the vehicles’ license plate information. In doing so, Christian

discovered the owner of a green Honda parked in the parking lot, Omar Cardenas, had a

warrant for his arrest out of Martinsville, Indiana.    The warrant was for possessing

marijuana and included a color photograph of Cardenas. The warrant also included
                                                                                          -3-


Cardenas’s weight, age, and general physical description. The description indicated that

Cardenas was a Hispanic male with dark hair.

       {¶ 4} After learning of the arrest warrant, Officer Christian made contact with

Sergeant Chiles in order to determine whether Cardenas could be picked up on the

Indiana warrant given that the warrant had a limited 300-mile pick-up radius. Sergeant

Chiles determined Martinsville, Indiana, was 140 miles from Vandalia. As a result, Chiles

ordered dispatch to contact the Martinsville Sheriff’s Office.          After contacting the

Martinsville Sheriff’s Office, Chiles was informed by dispatch that Cardenas would be

extradited to Martinsville if the officers were able to effectuate his arrest.

       {¶ 5} After speaking with dispatch, Sergeant Chiles and Officer Christian inquired

about Cardenas with the front desk clerk of the Super 8 Motel. The front desk clerk

advised the officers that no one with Cardenas’s name was registered to a room.

However, the clerk indicated that Cardenas’s green Honda was registered to Room 131,

and that the name registered to Room 131 was Fernandez Ramirez. Sergeant Chiles

testified that, in her 20 years of police experience, people commonly use aliases when

registering for motel rooms. Accordingly, Chiles testified that, in her mind, she thought

Cardenas could be in Room 131 despite the room being registered under a different

name. The officers also believed Cardenas was in Room 131 since Cardenas’s green

Honda was parked directly in front of the door to Room 131.

       {¶ 6} As Sergeant Chiles and Officer Christian approached the door to Room 131,

they could see that the lights were on by looking through a four-inch opening in the

otherwise drawn curtains. Sergeant Chiles testified that, as she stood by the ground-

level window to Room 131, she could smell the odor of marijuana emanating from the
                                                                                        -4-


room. Since Cardenas’s warrant was for possessing marijuana, Chiles testified that the

odor of marijuana also led her to believe that Cardenas was in the room.

         {¶ 7} Believing Cardenas was in Room 131, Officer Christian began to knock on

the motel room door and announce their presence as Vandalia police officers. Shortly

thereafter, Sergeant Chiles testified she could see “shadows of movements, like someone

was moving around in the room” through the opening in the curtains. Trans. (Sept. 1,

2017), p. 60-61. While standing close to the window at an angle, Sergeant Chiles saw

a Hispanic male approach the door and try to look out the peephole, which the officers

had blocked for officer safety. Officer Christian testified that Chiles told him the male

was making suspicious movements and crouching down.

         {¶ 8} Continuing, Sergeant Chiles testified that the male in Room 131 eventually

looked through the opening in the curtains and made eye contact with her. Upon making

eye contact, Chiles testified that she told the male, later identified as Fernando Ramirez,

to “[o]pen the door.” Id. at 62. In response, Chiles testified Ramirez put his hands up

and said: “Don’t shoot. Don’t shoot me.” Id. Ramirez then put one hand behind his back

while the other hand remained in the air. When Ramirez put his hand behind his back,

Sergeant Chiles testified she became concerned that he had a weapon. As a result,

Chiles drew her firearm at a “low ready position,” meaning that the tip of the gun was

pointed at the ground and that Chiles was holding the butt of the gun near her waist. Id.

at 63.

         {¶ 9} After 20 to 30 minutes of knocking on the door and ordering Ramirez to come

out of the room, Ramirez opened the door and exited the room. Once Ramirez was

outside the room, the officers ordered Ramirez to get on the ground. Ramirez complied
                                                                                        -5-


with the officers’ order, and Officer Christian handcuffed him. Believing that Ramirez

was Omar Cardenas, Sergeant Chiles asked Ramirez: “Omar, is there anyone else in the

room?” Id. at 65. Ramirez then told Chiles “I’m not Omar.” Id. At that point, Officer

Christian advised Ramirez that he was being detained until his identity could be

confirmed.

      {¶ 10} While Officer Christian detained Ramirez, Sergeant Chiles observed

another Hispanic male sitting on the bed inside Room 131 who resembled Cardenas.

Chiles ordered the second male, later identified as Chavez, the appellant in this case, to

get out of the room and on the ground. Chavez complied with Chiles’s order and was

subsequently handcuffed.     Believing Chavez was Cardenas, Sergeant Chiles asked

Chavez: “Omar, is there anyone else in the room?” Trans. (Sept. 1, 2017), p. 66. Like

Ramirez, Chavez stated he was not Cardenas. Officer Christian then told Chavez he

was also being detained until they confirmed his identity. Sergeant Chiles recalled either

Ramirez or Chavez advising her that Cardenas was his brother. It was later confirmed

that Chavez was in fact Cardenas’s brother.

      {¶ 11} Sergeant Chiles testified that, when she asked Chavez if anyone was else

in the room, Chavez “flung his head to the side towards the room, like nodding towards

the room and said something to the effect of look for yourself or go see for yourself.” Id.

at 67. Chiles testified that she took this as permission to enter the motel room. Chiles

then entered the room to look for Cardenas and to conduct a protective sweep for officer

safety since she did not know how many people were in the room. Chiles testified that

she only searched in the areas where she could not see and where a person could be

hiding, such as in the space between the two beds and in the bathroom, as the bathroom
                                                                                              -6-


door was shut.

       {¶ 12} After clearing the area between the beds, Sergeant Chiles attempted to

open the bathroom door, but met resistance. Because she was the lone officer in the

room and did not know whether the resistance was caused by someone pushing on the

door, Chiles backed out of the room for her safety and called for an additional officer to

assist with clearing the bathroom. Thereafter, Officers Christian and Sommer opened

the bathroom door while Chiles remained with Ramirez and Chavez. Upon opening the

bathroom door, the officers observed that the toilet was full of marijuana and that the

resistance they had met was due to a large duffle bag on the floor containing marijuana.

No one was discovered inside the bathroom.

       {¶ 13} After discovering the marijuana, the officers cleared the room.               The

officers, however, did not collect the marijuana until after a search warrant was secured.

Chavez and Ramirez were then placed under arrest for possession of marijuana and

Mirandized by Sergeant Chiles.

       {¶ 14} In light of the officers’ testimony, the trial court held that the entry and search

of the motel room in question was lawful. In so holding, the trial court found the issue of

whether Chavez consented to the officers’ entrance into the motel room was irrelevant

since the officers were armed with an arrest warrant for Cardenas and had probable

cause to believe Cardenas was inside the room. As a result, the trial court overruled

Chavez’s motion to suppress.

       {¶ 15} After the court overruled Chavez’s motion to suppress, Chavez pled no

contest to the indicted charge for possessing marijuana. The trial court then found

Chavez guilty of the charge and sentenced him to a period of community control not to
                                                                                           -7-


exceed five years. Chavez now appeals from his conviction, raising a single assignment

of error for review.



                                   Assignment of Error

       {¶ 16} Chavez’s sole assignment of error is as follows:

       THE     TRIAL     COURT      ERRED       TO     DEFENDANT-APPELLANT’S

       PREJUDICE WHEN IT OVERRULED HIS MOTION TO SUPPRESS.

       {¶ 17} Under his single assignment of error, Chavez contends the trial court erred

in failing to suppress the drug evidence discovered in the motel room. In support of this

argument, Chavez claims his Fourth Amendment protection against unreasonable

searches and seizures was violated when the officers: (1) entered his motel room to

execute an arrest warrant for Cardenas without a reasonable belief that Cardenas was

inside the motel room; (2) conducted a protective sweep of his motel room without an

arrest being made; (3) peered into the window of his motel room; and (4) failed to obtain

valid consent to enter his motel room. We disagree with Chavez’s claims.



                                    Standard of Review

       {¶ 18} “In ruling on a motion to suppress, the trial court ‘assumes the role of the

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

the credibility of the witnesses.’ ” State v. Prater, 2012-Ohio-5105, 984 N.E.2d 36, ¶ 7

(2d Dist.), quoting State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d

Dist.1994). “As a result, when we review suppression decisions, ‘we are bound to accept

the trial court’s findings of fact if they are supported by competent, credible evidence.
                                                                                      -8-


Accepting those facts as true, we must independently determine as a matter of law,

without deference to the trial court’s conclusion, whether they meet the applicable legal

standard.’ ” Id., quoting Retherford.



                                 Entry into Motel Room

        {¶ 19} For his first argument, Chavez contends his Fourth Amendment rights were

violated when the officers entered the motel room to execute an arrest warrant for

Cardenas. Chavez claims the arrest warrant did not permit the officers to enter the room

because the officers did not have a reasonable belief that Cardenas was in the room.

According to Chavez, a search warrant was required for the officers to lawfully enter his

room.

        {¶ 20} “The Fourth Amendment generally prohibits police from making a

warrantless, nonconsensual entry into a suspect’s home to make a felony arrest.” State

v. Cooks, 2d Dist. Clark No. 2016-CA-40, 2017-Ohio-218, ¶ 10, citing Payton v. New York,

445 U.S. 573, 588-589, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). It is well established

that the protection provided by the Fourth Amendment extends to hotel rooms. Hoffa v.

United States, 385 U.S. 293, 301, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), citing United

States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951). (“[a] hotel room can

clearly be the object of Fourth Amendment protection as much as a home or an office”).

Accord State v. Keith, 178 Ohio App.3d 46, 2008-Ohio-4326, 896 N.E.2d 764, ¶ 7 (2d

Dist.) (“[t]he sanctity of the home extends to any area where one has a legitimate and

reasonable expectation of privacy, including a motel room”).

        {¶ 21} In Payton, the United States Supreme Court held that “an arrest warrant
                                                                                           -9-


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

at 603. “ ‘Accordingly, pursuant to Payton, an arrest warrant is sufficient to enter a

person’s residence to effectuate the warrant if the police have reason to believe that the

suspect lives in the home and is in fact at the home at the time the arrest warrant is

executed.’ ” Cooks at ¶ 10, quoting State v. Zerucha, 11th Dist. Ashtabula No. 2015-A-

0031, 2016-Ohio-1300, ¶ 13.         (Other citation omitted.)     “The protections against

warrantless intrusions into the home announced in Payton * * * apply with equal force to

a properly rented hotel room during the rental period.” United States v. Junkman, N.D.

Iowa No. CR96-4033, 1997 WL 33559171, *3 (June 24, 1997), citing United States v.

Rambo, 789 F.2d 1289, 1295 (8th Cir.1986) and United States v. Wicks, 995 F.2d 964,

969 (10th Cir.1993).

       {¶ 22} Following its decision in Payton, the Supreme Court held in Steagald v.

United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), that absent exigent

circumstances or consent, an arrest warrant does not justify entry into a third person’s

home to search for the subject of the arrest warrant. Under Steagald, “a search warrant

must be obtained in order to seek out the subject of an arrest warrant on the property of

a third party.” State v. Pembaur, 9 Ohio St.3d 136, 138, 459 N.E.2d 217 (1984), citing

Steagald. The Steagald court expressly noted that it was not deciding “whether the

subject of an arrest warrant can object to the absence of a search warrant when he is

apprehended in another person’s home, but rather whether the residents of that home

can complain of the search.” Steagald at 219.

       {¶ 23} In situations involving hotel and motel rooms, federal courts have held that
                                                                                           -10-


when the person named in the arrest warrant is merely a guest of the registered tenant

of a hotel room, pursuant to Steagald, a search warrant is necessary to gain entrance into

the room absent consent or exigent circumstances. Junkman at *4; United States v.

Ray, 9th Cir. Nos. 93-10102, 93-10142, 93-10207, 1994 WL 134259, *2-3 (Apr. 13, 1994).

In contrast, if the person named in the arrest warrant is a tenant taking up residence in

the hotel room, Steagald does not apply and Payton permits the officers to enter the room

to effectuate the arrest warrant if they have a reasonable belief that the person named in

the arrest warrant is a tenant and present inside the room. See Payton, 445 U.S. 573,

603, 100 S.Ct. 1371, 63 L.Ed.2d 639.

       {¶ 24} Chavez relies on Steagald for the proposition that the officers needed a

search warrant to enter the motel room in question. This is correct only if the officers

had a reasonable belief that Cardenas was merely a guest of the room’s tenants. See

Junkman at *4 and Ray at *3. However, if the officers had a reasonable belief that

Cardenas was a tenant present inside the motel room, the arrest warrant would be

sufficient for the officers to lawfully enter the room in an attempt to arrest Cardenas.

       {¶ 25} “Reasonable belief is established by looking at common sense factors and

evaluating the totality of the circumstances.” (Citations omitted.) United States v. Pruitt,

458 F.3d 477, 482 (6th Cir.2006). “[A] reasonable belief is something less than probable

cause.” Cooks, 2d Dist. Clark No. 2016-CA-40, 2017-Ohio-218, at ¶ 11, citing Pruitt at

482-485. “Therefore, police officers do not need probable cause to enter a residence to

execute an arrest warrant provided they have a reasonable belief, founded in common

sense and based on the totality of the circumstances, that the suspect resides in the home

and that he is present at the time.” Id., citing Barrett v. Kentucky, 470 S.W.3d 337, 343
                                                                                        -11-


(Ky S.Ct.2015).

      {¶ 26} Under the totality of the circumstances, we find that Sergeant Chiles and

Officer Christian had a reasonable belief that the subject of the arrest warrant, Omar

Cardenas, was inside Room 131 of the Super 8 Motel on the night in question. It was

reasonable for the officers to believe that Cardenas was inside the room since the officers

saw a vehicle registered in Cardenas’s name parked directly outside the room. The

officers also knew that Cardenas’s arrest warrant was for possessing marijuana, and

Sergeant Chiles smelled the odor of marijuana emanating from Room 131. Sergeant

Chiles specifically testified that, given the nature of the arrest warrant, smelling the

marijuana led her to believe that Cardenas was inside the room. We find that such a

belief was reasonable.

      {¶ 27} In addition to seeing Cardenas’s vehicle parked outside the motel room and

smelling marijuana, Sergeant Chiles observed a male matching the general physical

description of Cardenas suspiciously moving around inside the motel room. According

to Chiles, the male was crouching down and attempting to look through the peephole

while Officer Christian was knocking on the door for 20 to 30 minutes. The suspicious

movements made in response to the officers knocking and announcing their presence,

coupled with the 20-30-minute delay in answering the door, supported a common-sense

inference that the male was attempting to avoid police contact. Because Cardenas had

a warrant for his arrest, it was reasonable for the officers to believe that the male

attempting to avoid police contact was Cardenas.

      {¶ 28} Although it is a closer call, we also find that Sergeant Chiles and Officer

Christian had a reasonable belief that Cardenas was a tenant residing in Room 131.
                                                                                        -12-


Such a belief was reasonable since the front desk clerk of the motel advised the officers

that Cardenas’s vehicle was registered to Room 131. Although the name supplied for

Room 131 was Fernandez Ramirez, Sergeant Chiles testified that, based on her 20 years

of law enforcement experience, it is common for people to use aliases when registering

for motel rooms. In light of that fact, and the fact that Cardenas’s vehicle was registered

to the motel room in question, it was reasonable for the officers to believe that Cardenas

was a tenant staying in the room.

      {¶ 29} Because they had an arrest warrant for Cardenas and a reasonable belief

that Cardenas was a tenant present inside of the motel room, the officers were

constitutionally permitted to enter the room to effectuate Cardenas’s arrest. Accordingly,

Cardenas’s first argument in support of his motion to suppress lacks merit.



                            Protective Sweep of Motel Room

      {¶ 30} For his second argument, Chavez contends the protective sweep of the

motel room was unlawful because no arrest had been made at the time the sweep was

conducted. Chavez also contends that the protective sweep was unlawful because the

officers had no basis to believe that Cardenas was inside the motel room.

      {¶ 31} In Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990),

the United States Supreme Court defined a protective sweep as “a quick and limited

search of premises, incident to an arrest and conducted to protect the safety of police

officers or others.” Id. at 327. The Court held that such protective sweeps are permitted

when officers possess “a reasonable belief based on specific and articulable facts that

the area to be swept harbors an individual posing a danger to those on the arrest scene.”
                                                                                         -13-

Id. at 337.   “The scope of the protective sweep must not exceed that reasonably

necessary to protect the safety of the officers.” State v. Lyons, 83 Ohio App.3d 525, 534,

615 N.E.2d 310 (2d Dist.1992).

       {¶ 32} A majority of federal circuit courts have extended the protective sweep

doctrine to cases where officers possess a reasonable suspicion that their safety is at

risk, even in the absence of an arrest.   See, e.g., United States v. Taylor, 248 F.3d 506,

513-514 (6th Cir.2001); United States v. Miller, 430 F.3d 93, 98-99 (2d Cir.2005); United

States v. Cisneros-Gutierrez, 598 F.3d 997, 1006-1007 (8th Cir.2010); United States v.

Werra, 638 F.3d 326, 350-351 (1st Cir.2011); United States v. Gould, 364 F.3d 578, 584

(5th Cir.2004); Leaf v. Shelnutt, 400 F.3d 1070, 1086-1087 (7th Cir.2005). The Supreme

Court of Ohio has also taken this position, as it held that “[p]olice officers can conduct a

protective sweep without making an arrest if circumstances warrant.” State v. Adams,

144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 188, citing Cisneros-Gutierrez at

1006-1007 and Taylor at 513-514.

       {¶ 33} Based on the foregoing case law, Chavez’s claim that the protective sweep

was unlawful because it was not made incident to an arrest lacks merit. As noted above,

in order for the protective sweep to have been lawful, the officers simply must have had

a reasonable belief that the motel room harbored an individual posing a danger to the

officer or others. Buie at 337. Chavez’s claim otherwise lacks merit.

       {¶ 34} In addressing Chavez’s first argument, we have already determined that

Sergeant Chiles and Officer Christian reasonably believed that Cardenas, an individual

with an arrest warrant, was inside the motel room. Furthermore, “[w]hen officers have

obtained an arrest warrant and they have reason to believe that the suspect is inside the
                                                                                        -14-

house, they may search anywhere that the suspect might reasonably be found.” United

States v. Stover, 474 F.3d 904, 911 (6th Cir.2007), citing Buie at 332-333.

      {¶ 35} Here, after Chavez and Ramirez exited the hotel room and advised the

officers they were not Cardenas, the officers were located in a position where certain

areas of the hotel room were not visible, areas where Cardenas could have been hiding.

For example, Sergeant Chiles testified that she could not see the space between the two

beds or inside the bathroom. Because the arrest warrant permitted the officers to search

anywhere in the motel room where Cardenas could have been found, it was not unlawful

for the officers to enter the room and search those areas.

      {¶ 36} As a further matter, the officers testified that they met resistance when they

attempted to open the bathroom door. Not knowing whether the resistance was caused

by an individual pushing on the bathroom door, or some other less nefarious obstruction,

the officers cleared the bathroom to determine whether Cardenas or some other individual

was inside. Given the resistance on the door and the fact that Cardenas had not been

located, it was reasonable for the officers to believe that someone posing a danger to the

officers could have been inside the bathroom.

      {¶ 37} The fact that the sweep of the motel room did not reveal Cardenas has no

bearing on whether the officers were justified in entering the motel room and conducting

the sweep. See United States v. Lawlor, 406 F.3d 37, 42, fn. 5 (1st Cir.2005), citing

Buie, 494 U.S. at 335-336, 110 S.Ct. 1093, 108 L.Ed.2d 276. “While it is true that the

officers could not be certain that a threat existed inside the [motel room], this does not

impugn the reasonableness of their taking protective action.” United States v. Henry, 48

F.3d 1282, 1284 (D.C. Cir.1995). “It is enough that they ‘have a reasonable basis for
                                                                                          -15-

believing that their search will reduce the danger of harm[.]” Id., quoting Buie at 337

(Stevens, J., concurring).

       {¶ 38} For the foregoing reasons, Chavez’s second argument in support of his

motion to suppress lacks merit.



                                   Peering into Window

       {¶ 39} For his third argument, Chavez contends the officers violated his Fourth

Amendment rights by peering into his motel room window and curtains. In support of

this argument, Chavez claims the area around the motel window is curtilage, which

carries a reasonable expectation of privacy that the officers violated.

       {¶ 40} Chavez did not raise this argument in his motion to suppress or at the

suppression hearing. As a result, the trial court did not address this issue. By failing to

raise this issue before the trial court, Chavez has waived the argument for appeal. “ ‘It

is settled law that issues raised for the first time on appeal and not having been raised in

the trial court are not properly before this court and will not be addressed.” (Citations

omitted.) State v. Schneider, 2d Dist. Greene No. 95-CA-18, 1995 WL 737910, *1 (Dec.

13, 1995).

       {¶ 41} Regardless, even if Chavez had raised the issue, it is questionable whether

the officers’ act of peering in the window violated a reasonable expectation of privacy in

curtilage.   This court has noted that using the term “ ‘curtilage’ in connection with

commercial premises is somewhat of a misnomer since the term typically is associated

with the yard or enclosed space surrounding a dwelling house.”            (Citation omitted.)

State v. Trammel, 2d Dist. Montgomery No. 17196, 1999 WL 22884, *3 (Jan. 22, 1999).
                                                                                          -16-


Curtilage—the area immediately adjacent to a home which an individual reasonably

expects is private—is regarded as “ ‘part of the home itself for Fourth Amendment

purposes.’ ” Florida v. Jardines, 569 U.S. 1, 6, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013),

quoting Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214

(1984).

       {¶ 42} Nevertheless, we have noted that the term “ ‘curtilage’ has been used in

search warrant situations to designate the area surrounding a commercial property,

whether that area be a parking lot or fenced area.” Trammell at *4, citing State v.

Zinmeister, 27 Ohio App.3d 313, 320-21, 501 N.E.2d 59 (8th Dist.1985) and State v. Am.

Veterans Post No. 250, 37 Ohio App.3d 108, 524 N.E.2d 191 (9th Dist.1987).

Regardless of the designation, we have held that “the Fourth Amendment applies to

commercial premises, and extends to areas that can be equated with the ‘curtilage’ of a

private home.” Trammel at *6. Accord State v. Nelms, 2017-Ohio-1466, 81 N.E.3d 508,

¶ 8 (2d Dist.). This area “can include the grounds surrounding the premises, if the

premises fit within the traditional Fourth Amendment analysis, i.e., the area is one in which

the owner has a reasonable expectation of privacy.” (Citation omitted.) Trammell at *4.

       {¶ 43} A reasonable expectation of privacy is present when there is a subjective

expectation of privacy that society is prepared to recognize as reasonable. State v. Little,

183 Ohio App.3d 680, 2009-Ohio-4403, 918 N.E.2d 230, ¶ 18 (2d Dist.); Katz v. United

States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).

There are several cases indicating that there is no reasonable expectation of privacy in

common areas outside motel rooms.         United States v. Diaz, 25 F.3d 392, 396 (6th

Cir.1994) (no reasonable expectation of privacy in motel parking lot); United States v.
                                                                                         -17-

Marlar, 828 F.Supp. 415, 419 (N.D.Miss.1993) (canine sniff of an exterior motel room

door opening onto a public sidewalk and parking lot did not intrude on defendant’s

reasonable expectation of privacy); United States v. Conner, 948 F.Supp. 821, 839

(N.D.Iowa 1996) (no reasonable expectation of privacy in sidewalk/windowsill area of

motel room where officer observed contraband in the window between curtains); Ponce

v. Craven, 409 F.2d 621, 625 (9th Cir.1969) (no reasonable expectation of privacy where

officers observed activities through hotel room window).

       {¶ 44} However, as relevant to the facts and circumstances here, several cases

note the significance of closing a window’s blinds or curtains.   United States v. Gori, 230

F.3d 44, 51 (2d Cir.2000) (“Fourth Amendment privacy interests are most secure when

an individual is at home with doors closed and curtains drawn tight”); United States v.

Honore, 450 F.2d 31, 33 (9th Cir.1971) (no illegal search where visual observations of

objects within residence were through uncurtained window from public stairway); Pate v.

Municipal Court, 11 Cal.App.3d 721, 724, 89 Cal.Rptr. 893 (1970) (“[c]learly, by drawing

the curtains on the window of a motel room which was located on the second floor of the

building and at a considerable distance from any public vantage point, appellants

exhibited a reasonable expectation of privacy”); United States v. Dimick, 790 F.Supp.

1543, 1549 (D.Colo.1992) (“[c]urtains can be drawn, so that activities inside are not

exposed to public view”); Ponce at 625 (noting that if defendant did not wish to be

observed through the hotel window he could have drawn his blinds).

       {¶ 45} In this case, the area from where the officers looked through the motel room

window was the public sidewalk located directly in front of Chavez’s ground-level motel

room. Any person walking past Room 131 could have peered into Chavez’s motel room
                                                                                           -18-


window. We note that Sergeant Chiles testified that she had to stand close to the window

at an angle to see through the four-inch opening in the window’s curtains. However,

since Chavez waived this argument for appeal, we need not delve into what significance,

if any, the four-inch opening in the curtains or Chiles’s positioning has on this issue.

       {¶ 46} Even if we were to find that Chavez’s reasonable expectation of privacy was

violated when Sergeant Chiles peered through the four-inch opening in the curtains,

Chavez fails to indicate what evidence he wishes to have suppressed as a result of the

Chiles’s conduct. None of the officers observed any contraband as a result of peering

through the motel window. Rather, all the contraband at issue was discovered when the

officers lawfully entered the motel room and searched the bathroom for Cardenas.

Therefore, Chavez cannot demonstrate any prejudice. For this reason, Chavez’s third

argument in support of his motion to suppress lacks merit.



                              Consent to Enter Motel Room

       {¶ 47} For his fourth argument, Chavez contends he did not voluntarily consent to

the officers’ entrance into his motel room and that his alleged consent cannot be used as

justification for the officers’ entry and search of the motel room. The trial court found,

and we agree, that whether Chavez consented to the officers entering his motel room is

irrelevant, because the officers were permitted to enter the motel room by virtue of the

arrest warrant for Cardenas. Because the officers had a reasonable belief that Cardenas

was a tenant present inside the motel room, the officers were permitted to enter the room

and search for Cardenas. For this reason, Chavez’s fourth argument in support of his

motion to suppress lacks merit.
                                                                                          -19-




                                        Conclusion

       {¶ 48} Having found no merit to any of Chavez’s arguments, his single assignment

of error is overruled and the judgment of the trial court overruling his motion to suppress

is affirmed.

                                      .............

TUCKER, J., concurs.

DONOVAN, J., dissenting:

       {¶ 49} I dissent. In my view, the officers’ entry into the motel room registered to

Fernandes Ramirez and occupied by Chavez was unlawful. The fact that the police were

aware of an arrest warrant for Cardenas did not give them authority to enter the motel

room and search for him pursuant to Steagald, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d

38. In the absence of consent or exigent circumstances,1 an arrest warrant does not

authorize officers to enter the residence of a third party to seize the person named in the

warrant. Id.; Minnesota v. Carter, 525 U.S. 83, 100, 119 S.Ct. 469, 142 L.Ed.2d 373

(1998); see State v. Martin, 151 Ohio St.3d 740, 2017-Ohio-7556, 90 N.E.3d 857, ¶ 78.

To enter the home of a third party to make an arrest, officers are required to obtain a

search warrant. Steagald at 214-215; Martin at ¶ 78 (“[A]n arrest warrant does not

authorize police to enter the premises of a third party to arrest the subject of the warrant.

For that, they must obtain a search warrant unless an exception to the warrant justifies


1 Exigent circumstances include a limited number of emergency situations, such as
immediate danger of injury to others, a need to provide immediate aid, evidence of flight,
imminent destruction of contraband, or hot pursuit of a fleeing felon. E.g., State v.
Pinson, 2d Dist. Montgomery No. 20927, 2005-Ohio-4532, ¶ 18; Trammel, 2d Dist.
Montgomery No. 17196, 1999 WL 22884, * 7.
                                                                                           -20-


entry.”).

       {¶ 50} Chavez had a reasonable expectation of privacy in the motel room and thus,

the right not to answer the door while the police stood outside knocking for 20 minutes.

His co-occupant, Ramirez, as the registered guest, likewise chose not to answer the door.

During this time frame, the police could have ostensibly obtained a search warrant for the

room had they possessed probable cause to believe Cardenas was harbored therein.

       {¶ 51} Likewise, any protective sweep analysis must fail, as there is simply no

evidence that the motel room harbored an individual posing danger to the officers or

others. They simply cannot create an exigency by refusing to leave when the registered

guest of a motel room declines to answer the door. “That they did not know whether

anyone else was inside is insufficient to justify their entry.” State v. Sharpe, 2d Dist.

Clark No. 2007 CA 46, 2008-Ohio-267, at ¶ 51.

       {¶ 52} To protect third parties, in this case, Chavez (as well as Ramirez), according

to the logic of Steagald, it must be a judicial officer, not a police officer on the scene, who

decides whether there is reason to believe that a wanted felon is cohabitating and present

in a motel room.     Otherwise there is no detached scrutiny by a judicial officer and

Chavez’s Fourth Amendment rights are protected only by an officers’ personal

determination of probable cause. The search for an object inside a home (or motel room)

requires a search warrant, and the Steagald court saw “no reason to depart from this

settled course when the search is for a person rather than an object.” Steagald, 451

U.S. at 214, 101 S.Ct 1642, 68 L.Ed.2d 38.

       {¶ 53} I would reverse.
                            -21-



Copies sent to:

Mathias H. Heck, Jr.
Michael P. Allen
Adelina E. Hamilton
Hon. Michael W. Krumholtz
