[Cite as State v. Storer, 2019-Ohio-5166.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             FAYETTE COUNTY




STATE OF OHIO,                                     :

       Appellee,                                   :      CASE NO. CA2019-04-005

                                                   :             OPINION
    - vs -                                                       12/16/2019
                                                   :

MATTHEW S. STORER,                                 :

       Appellant.                                  :




      CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                          Case No. CRI 20180384



Jess C. Weade, Fayette County Prosecuting Attorney, Sean M. Abbott, 110 East Court
Street, Washington Court House, Ohio 43160, for appellee

Steven H. Eckstein, 1208 Bramble Avenue, Washington Court House, Ohio 43160, for
appellant



        RINGLAND, P.J.

        {¶ 1} Matthew Storer appeals his felony drug conviction in the Fayette County

Common Pleas Court.              For the reasons described below, this court affirms Storer's

conviction.

        {¶ 2} In October 2018, Fayette County grand jurors indicted Storer on one count of

aggravated possession of drugs, a violation of R.C. 2925.11(A) and (C)(1)(a), and a felony of
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the fifth degree. The indictment resulted from a police officer's recovery of a small quantity of

methamphetamine in Storer's possession during a pat down search. The pat down search

occurred following a probation search of a motel room where Storer was living with Isabelle

Allman, who was on probation, and Allman's boyfriend.

       {¶ 3} While the criminal case was pending, Storer moved to suppress the evidence

against him as obtained in violation of his constitutional rights. At the suppression hearing,

the state elicited testimony from Dan Sheets, Allman's probation officer, and the arresting

patrolman, Justin Everhart.

       {¶ 4} Officer Sheets testified that the terms of Allman's probation allowed him to

search Allman or her residence at any time. On August 14, 2018, Allman appeared at her

probation meeting and admitted that she and her boyfriend had been using drugs. Storer,

Allman, and her boyfriend were living in a room at the City Motel in Washington Court House,

Ohio. The motel room was Allman's registered address with the probation department.

Storer was supplying Allman and Allman's boyfriend with drugs. Allman indicated that there

were drugs currently in the motel room.

       {¶ 5} Officer Sheets arrested Allman. Approximately one hour later, Officer Sheets,

Patrolman Everhart, and other probation and law enforcement officers traveled to Allman's

room at the City Motel. Officer Sheets knocked on the door and tried the door handle, which

was unlocked. He opened the door, yelled for Allman's boyfriend, and entered the room.

Officer Sheets and another probation officer then began searching the motel room, which

consisted of a bedroom and adjoining bathroom. Allman's boyfriend and Storer were present

in the room while the search occurred. Patrolman Everhart and other law enforcement

officers stood by as the probation officers searched.

       {¶ 6} The probation officers observed spoons and needles, believed to be drug

paraphernalia, in plain view in the bathroom. The bedroom was cluttered with clothing. In
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one corner of the bedroom there was a pile of bags. Sheets explained that there were both

male and female clothing visible in the room but he could not discern whom the bags

belonged to without opening each bag. Sheets opened one bag and discovered two digital

scales. After the digital scales were recovered, Storer admitted ownership of the bag.

       {¶ 7} Patrolman Everhart then arrested Storer for possession of drug paraphernalia.

In a subsequent search incident to arrest, Patrolman Everhart located a cigarette pack in

Storer's possession. Within the cigarette pack, Patrolman Everhart retrieved a small baggie

containing methamphetamine.

       {¶ 8} After hearing the evidence and arguments, the trial court announced that it

would deny Storer's motion to suppress. The trial court reasoned that Storer was living with a

probationer and had no reasonable expectation of privacy in the contents of the bag. Storer

subsequently entered a plea of no contest and the trial court found him guilty. Storer

appeals, raising a single assignment of error.

       {¶ 9} Assignment of Error No. 1:

       {¶ 10} THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S

MOTION TO SUPPRESS IN VIOLATION OF HIS RIGHTS UNDER THE FOURTH

AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 14

OF THE OHIO CONSTITUTION.

       {¶ 11} Storer argues that the probation and law enforcement officers executed an

illegal, warrantless search of the motel room. First, he contends that consent to search,

provided pursuant to the terms of Allman's probation, was revoked when Allman was

arrested. Second, Storer argues that Allman had neither actual nor apparent authority to

consent to a search of his bag. Third, Storer argues that the digital scales did not provide

police with probable cause to arrest him for drug paraphernalia. Therefore, the subsequent

recovery of methamphetamine was fruit of the poisonous tree.
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       {¶ 12} Appellate review of a ruling on a motion to suppress presents a mixed question

of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353, ¶

12. The trial court, as the factfinder, is in the best position to resolve factual questions and

evaluate witness credibility. 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. This 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. Id.

       {¶ 13} The Fourth Amendment to the United States Constitution assures the "right of

the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures * * *." The Fourth Amendment right of privacy extends to occupants

of a hotel room. Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889 (1964). Warrantless

searches and seizures are unreasonable under the Fourth Amendment except for a few well-

delineated exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507 (1967).

       {¶ 14} The United States Supreme Court has upheld warrantless searches of a

probationer's residence, provided that a "reasonable suspicion" exists that evidence of

criminal activity can be found in a probationer's home. United States v. Knights, 534 U.S.

112, 120-121, 122 S.Ct. 587 (2001). In addition, the Ohio Revised Code authorizes a

probation officer to conduct a warrantless search of a probationer's person or home if the

officer has "reasonable grounds" to believe the probationer failed to abide by the law or by

the terms of his probation. R.C. 2967.131(C). Accord State v. Cowans, 87 Ohio St.3d 68, 75

(1999) (recognizing "a probation officer may search a probationer's home without a warrant

and upon less than probable cause").

       {¶ 15} Another exception to the warrant requirement exists when an individual

consents to a search. Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S.Ct. 2041 (1973).
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The Ohio Supreme Court has recognized that parolees may validly consent in advance to

warrantless searches in exchange for the opportunity to shorten a prison term. State v.

Benton, 82 Ohio St.3d 316, 321 (1998). 1 "A warrantless search performed pursuant to a

condition of parole requiring a parolee to submit to random searches of his or her person,

motor vehicle, or place of residence by a parole officer at any time is constitutional" as a

consent search. Id. at syllabus.

        {¶ 16} Storer first argues that any consent to search based upon the terms of Allman's

probation terminated upon Allman's arrest. Storer cites no authority in support of this

proposition. Instead, Storer cites several federal court cases that stand for the assertion that

a warrantless search of a probationer's residence following the probationer's arrest does not

violate the Fourth Amendment.

        {¶ 17} As a probationer, Allman consented to the probation department conducting

searches of her person or residence at any time. She informed Officer Sheets that she had

violated her probation by taking illegal narcotics and having drugs in her residence. Officer

Sheets could not simply rely on Allman's statement that she was violating probation. He was

duty bound to investigate her claims and obtain further evidence to confirm her statements

and to support the department's prosecution of the probation violation. Allman's arrest did

not terminate her probation and it did not prevent Officer Sheets from performing his duties

as Allman's probation officer.

        {¶ 18} Storer's argument implies that the search was merely a pretext to conduct a

warrantless search in support of a separate criminal investigation against Allman's boyfriend

or Storer. However, the facts indicate that this was primarily a probation search. Officer

Sheets executed the search only one hour after arresting Allman and there was no evidence


1. The Ohio Supreme Court has held that there is "no material difference between probationers and parolees in
the context of constitutional guarantees." State v. Roberts, 32 Ohio St. 3d 225, 229 (1987).
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suggesting any effort to ensure that the boyfriend or Storer were present during the search.

Patrolman Everhart testified that he was unaware of whether any other individuals would be

at the motel room when they arrived. Patrolman Everhart also testified that he was there to

assist Officer Sheets and the other probation officer and simply watched as they conducted

their search.

       {¶ 19} Next, Storer argues that consent to conduct a probation search of the common

areas of the motel room or Allman's personal property did not also extend to his personal

property, including the bag containing the digital scales. Permission to search may be

obtained from a third party who possesses common authority over the premises. United

States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988 (1974). The authority which justifies third-

party consent to search rests upon:

                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. at 171, fn. 7. The state bears the burden of establishing common authority. Illinois v.

Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L. Ed. 2d 148 (1990).

       {¶ 20} 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 Rodriguez at

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


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       {¶ 21} In Norman, this court reversed a trial court decision denying a motion to

suppress evidence in a case involving a probation consent search. There, the defendant and

another individual rented a basement portion of a home from the probationer, who lived on

the main and upper floors of the home. Id. at ¶ 2, 30. The probation officer came to the

home to investigate claims that the probationer had firearms and marijuana plants in the

home. Id. at ¶ 8. Upon entry to the home, the officer detected the smell of marijuana coming

from the basement. Id.

       {¶ 22} The officer attempted to gain access to the basement but it was locked with a

key lock and a number-pad activated bolt lock. Id. at ¶ 2. The probationer informed the

officer that he was renting out the basement and did not have a key to open the door or know

the passcode. Id. The probationer produced a written lease, but the probation officer did not

look at it. Id. at ¶ 9.

       {¶ 23} Meanwhile, one of the renters arrived at the home. Id. at ¶ 3. The renter

admitted that there was marijuana in the basement but refused to consent to a search or to

open the door for the probation officer. Id. at ¶ 3. The probation officer then took the door

off the hinges and entered the basement, uncovering a marijuana grow operation. Id. at ¶ 4.

       {¶ 24} The trial court concluded that the probationer had both actual and apparent

authority to consent to the search. Id. at ¶ 21. On appeal, this court concluded that the

probationer did not have common authority to enter the basement because he had entered

into a written lease agreement with his renters that granted them exclusive use of the

premises. Id. at ¶ 36. Additionally, he could not physically enter the basement because it

was locked and he claimed not to have a key or to know the passcode. Id. This court also

found that the evidence did not demonstrate apparent authority because, given the

circumstances presented, the probation officer should have had reason to doubt that the

probationer had the authority to enter the basement. Id. at ¶ 39.
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       {¶ 25} In this case, there was no evidence indicating that Allman had common or

actual authority to consent to a search of Storer's bag. However, unlike Norman, there was

evidence to indicate that Officer Sheets could reasonably believe that he had the right to

search the bag pursuant to the terms of Allman's probation. The motel room was Allman's

registered residence with the probation department. Officer Sheets found the bag in a

common area. It was not segregated from the other bags located in the room. The bag was

not secured in any manner; Officer Sheets merely had to open it to examine it contents.

       {¶ 26} Officer Sheets could not determine if the bag belonged to a male or female

without opening it. There was no evidence presented indicating what else was in the bag or

whether the bag contained items that Officer Sheets had to first remove to find the scales,

which could have indicated that the bag belonged to someone other than Allman. Notably,

Storer did not object to Officer Sheets opening the bag. Storer only identified it as his bag

after Officer Sheets had searched it.      Under the circumstances presented, this court

concludes that a reasonable probation officer in Officer Sheets' position would not have

reason to doubt his ability to search the bag. The search in this case was reasonable and

did not violate Storer's Fourth Amendment rights.

       {¶ 27} Finally, Storer argues that Patrolman Everhart lacked probable cause to arrest

him for drug paraphernalia based on his admission that he owned the bag with the scales.

He argues that the spoons and needles found in the bathroom were in a common area of the

motel room shared with two other people and, as such, the evidence available to Patrolman

Everhart did not establish probable cause to arrest him for drug paraphernalia. Storer argues

that because his arrest was invalid, then the subsequent search incident to arrest was illegal.

       {¶ 28} "For a warrantless arrest to be lawful, the arresting officer must have probable

cause that the individual had committed an offense." State v. Watson, 12th Dist. Warren No.

CA2014-08-110, 2015-Ohio-2321, ¶ 14.          "Probable cause is generally defined as a
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reasonable ground of suspicion supported by facts and circumstances sufficiently strong in

themselves to warrant a prudent person in believing an accused person has committed or

was committing an offense." State v. Christopher, 12th Dist. Clermont No. CA2009-08-041,

2010-Ohio-1816, ¶ 16.

      {¶ 29} Officer Sheets and Patrolman Everhart went to the motel room because Allman

had confessed to violating her probation and had informed Officer Sheets that there were

drugs in the room. Allman identified Storer as the individual who was supplying her with

drugs. The probation officers observed spoons and needles in plain view. Based upon this

evidence, Patrolman Everhart would have reasonable grounds to believe that the scales

were drug paraphernalia. In conclusion, this court finds that police did not violate Storer's

Fourth Amendment rights through the warrantless probation search of the motel room and

Storer's subsequent arrest. This court overrules Storer's assignment of error.

      {¶ 30} Judgment affirmed.


      PIPER and M. POWELL, JJ., concur.




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