[Cite as State v. Sky Lake, 2018-Ohio-1707.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                             LAWRENCE COUNTY

STATE OF OHIO,                  :
                                :   Case Nos. 17CA15
     Plaintiff-Appellee,        :               17CA16
                                :
     v.                         :   DECISION AND JUDGMENT
                                :   ENTRY
SKY LAKE and TRACY L. ELLIS, :
                                :
     Defendants-Appellants.     :   Released: 04/27/18
_____________________________________________________________
                          APPEARANCES:

Stephen T. Wolfe, Wolfe Law Group, LLC, Columbus, Ohio, for
Appellants.

Brigham Anderson, Lawrence County Prosecutor, and Daniel Kasaris,
Special Assistant Lawrence County Prosecutor/Senior Assistant Ohio
Attorney General, Cleveland, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Appellants, Tracy Ellis and Sky Lake, Inc., in a consolidated

appeal, challenge the decisions of the trial court denying their motions to

suppress filed in separate cases below. On appeal, Appellants contend that

1) the trial court erred in finding that the warrantless search by law

enforcement officers was justified; and 2) the trial court erred in finding that

a warrant obtained after warrantless police entry was issued on valid

probable cause. However, in light of our determination that the trial court
Lawrence App. Nos. 17CA15 and 17CA16                                           2

reasonably concluded that staff at Sky Lake impliedly consented to law

enforcement officers entering a game room that contained illegal gambling

machines, Appellants’ constitutional rights were not violated by the

warrantless search, or subsequent search pursuant to a warrant, that occurred

as a result. Therefore, Appellants were not entitled to suppression of the

evidence obtained as a result of the search. Accordingly, both of

Appellants’ assignments of error are overruled and the judgment of the trial

court is affirmed.

                                    FACTS

      {¶2} Appellants, Tracy Ellis and Sky Lake, Inc., were indicted on

April 19, 2016 on multiple misdemeanor and felony counts. Tracy Ellis was

indicted for twenty-four counts, including three first degree misdemeanor

counts of gambling, twelve third degree felony counts of money laundering,

four fifth degree felony counts of possession of criminal tools, three first

degree misdemeanor counts of operating a gambling house and two first

degree felony counts of engaging in a pattern of corrupt activity. Sky Lake,

Inc. was separately indicted on identical counts.

      {¶3} The indictments stemmed from a several months-long

investigation by investigators from the Charitable Law Section of the Ohio

Attorney General’s Office, which was initiated after an anonymous
Lawrence App. Nos. 17CA15 and 17CA16                                          3

complaint was made indicating that illegal gambling machines were located

at Sky Lake, Inc. The record indicates that Appellant Sky Lake, Inc. is a

public pay lake and restaurant owned by Appellant Tracy Ellis, and is

located in Lawrence County, Ohio. Both Appellants denied the charges and

their cases proceeded in the trial court as separate cases. Motions to

suppress were filed in each case and a joint hearing on the motions was held

June 15, 2017.

      {¶4} The State presented Damon Roberts as its sole witness in the

suppression hearing. A review of the suppression hearing transcript

indicates that Roberts, at the time of the investigations, was a major case

investigator with the Charitable Law Section of the Ohio Attorney General’s

office. Roberts testified that he and his partner, Tim Meyers, initially visited

Sky Lake on the evening of January 17, 2014, after receiving an anonymous

complaint. He testified that he and Meyers entered the establishment,

ordered food and ate. He testified that while standing at the bar drinking

coffee after he ate, he could hear bells and pinging sounds and that he was

able to observe monitors that were lit up in a dark room near the bar. He

testified that based on his experience he recognized the sounds to be those of

slot machines. He testified the door to the room with what appeared to be

slot machines was kept closed, but did not appear to be locked, and that he
Lawrence App. Nos. 17CA15 and 17CA16                                                                       4

observed individuals leaving the room. He then left and did not return until

March 14, 2014.

         {¶5} During his second visit, Roberts testified that he entered the

restaurant with Meyers, he approached the clerk at the counter, and he asked

the clerk to give him five ten dollar bills in exchange for a fifty dollar bill.

He testified that he told the clerk at that time that he wanted change for the

games or machines. The clerk obliged and made change from cash

contained in her apron. Roberts testified that he and Meyers then walked

into the game room, which was about ten steps away from the counter where

the clerk was located. Roberts testified that he did not have to be buzzed

into the room and that the door to the room was unlocked. Roberts testified

that there was a sign on the outside of the door to the game room marked

either “private” or “employees only.” Upon viewing photos of the facility,

Roberts clarified that the door he went through to access the game room was

marked “private,” rather than “employees only,” and that the reference in his

written reports indicating the door was marked “employees only” was a

mistake.1

         {¶6} A review of the transcript further reveals that after entering the

game room, the investigators played the machines, printed vouchers and
1
 It appears that Roberts prepared written reports related to his visits to Sky Lake, Inc. on March 14, 2014,
May 24, 2014, June 20, 2014, and July 1, 2014. In each report he indicated that the door to the game room
was marked “employees only.”
Lawrence App. Nos. 17CA15 and 17CA16                                                                            5

then cashed out by following instructions posted in the game room directing

them to ring the doorbell in order for a clerk to come to the game room.

Roberts testified that the clerk wrote their names down and then paid them

from the pocket of her apron. Roberts testified that he went back three

additional times after his March visit until July when a search warrant was

obtained and executed.

         {¶7} Appellants presented one witness in support of their suppression

motion, Carol Ellis, wife of Tracy Ellis. Mrs. Ellis testified that there are

three doors as evidenced in the photos introduced at the hearing. The door

to the far left is located behind the counter, has no sign, and leads into the

kitchen. She testified that the middle door is also located behind the counter,

is marked “employees only,” and leads into the bait room.2 She testified that

the door to the far right leads into the game room and is marked “private.”

She testified it was her understanding that the door into the game room was

kept locked and that individuals had to be “buzzed in” by the clerk.

However, she also conceded that she had never worked at Sky Lake, had

never tried to go into the game room and was not there on the dates at issue.




2
 Mrs. Ellis testified that once in the bait room, one can go through a door to the left in order to enter the
kitchen, or can go through a door to the right to enter the game room (through a door which has no sign).
Roberts, however, testified that he at no point walked behind the counter in order to gain entrance into the
game room.
Lawrence App. Nos. 17CA15 and 17CA16                                           6

      {¶8} After permitting oral closing arguments, the trial court issued a

written decision on July 3, 2017 denying both of the motions to suppress. In

reaching its decision, the trial court noted that although Sky Lake was open

to the public, it had a right to preserve certain areas as private. However, the

trial court determined that Roberts was given implied consent to enter the

game room when the clerk provided him change in response to his request

for her to do so in order that he could play the machines, followed by the

fact that he then walked into the game room unimpeded, played games,

printed vouchers, and exchanged them for cash. The trial court reasoned

that the fact pattern demonstrated, at the least, implicit consent to his

presence in the game room. The trial court further opined that it was unclear

whether the buzzer was operational or if the door was already unlocked on

the dates at issue, but that if the door was locked and Roberts was in fact

buzzed in, as described by Mrs. Ellis in her testimony, then Sky Lake had

expressly consented to Roberts’ presence in the game room.

      {¶9} Thereafter, Appellants entered into plea negotiations whereby

they pleaded no contest to the following counts, in exchange for the

dismissal of the remaining counts: Tracy Ellis – two counts of first degree

misdemeanor gambling and six counts of fifth degree felony possession of
Lawrence App. Nos. 17CA15 and 17CA16                                                                        7

criminal tools3; and Sky Lake, Inc. – two counts of third degree felony

money laundering and one count of attempted engaging in a pattern or

corrupt activity, a third degree felony.4 Appellant Tracy Ellis was sentenced

to a one-year term of community control, as well as ninety days of house

arrest, court costs, and forfeiture of $68,251.96. Appellant Sky Lake, Inc.

was sentenced to a forfeiture of any and all interest it had in the $68,251.96,

which were proceeds of criminal activity.

         {¶10} Appellants separately appealed to this Court and the appeals

were thereafter consolidated. Appellants now jointly raise two assignments

of error for our review.

                                 ASSIGNMENTS OF ERROR

“I.      THE TRIAL COURT ERRED IN FINDING THAT THE
         WARRANTLESS SEARCH BY LAW ENFORCEMENT
         OFFICERS WAS JUSTIFIED BY CONSENT.

II.      THE TRIAL COURT ERRED IN FINDING THAT A WARRANT
         OBTAINED AFTER WARRANTLESS POLICE ENTRY WAS
         ISSUED ON VALID PROBABLE CAUSE.”

                                       LEGAL ANALYSIS

         {¶11} Because Appellant’s assignments of error are interrelated, they

lend themselves to a joint analysis and we therefore address them in


3
  The record indicates that counts fifteen and sixteen, which originally charged Ellis with third degree
felony money laundering, were both amended to fifth degree felony possession of criminal tools.
4
  Count twenty-three, first degree felony engaging in a pattern of corrupt activity, was amended to third
degree attempted engaging in a pattern of corrupt activity.
Lawrence App. Nos. 17CA15 and 17CA16                                              8

conjunction with one another. Appellants jointly contend, in their first

assignment of error, that the trial court erred in finding that the warrantless

search by law enforcement officers was justified by consent. In their second

assignment of error, Appellants contend that the trial court erred in finding

that a warrant obtained after warrantless police entry was issued on valid

probable cause. Because both of these determinations were made by the trial

court in the context of denying Appellants’ motions to suppress, we first

consider our standard of review when reviewing a trial court’s denial of a

motion to suppress.

                              Standard of Review

      {¶12} Appellate review of a trial court's decision on a motion to

suppress raises a mixed question of law and fact. State v. Crocker, 2015-

Ohio-2528, 38 N.E.3d 369, ¶ 60 (4th Dist.); citing State v. Hobbs, 133 Ohio

St.3d 43, 2012-Ohio-3886, 975 N.E.2d 965, ¶ 6. Because the trial court acts

as the trier of fact in suppression hearings and is in the best position to

resolve factual issues and evaluate the credibility of witnesses, we must

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

credible evidence. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

797 N.E.2d 71, ¶ 8. Accepting these facts as true, we must then

“independently determine, without deference to the conclusion of the trial
Lawrence App. Nos. 17CA15 and 17CA16                                              9

court, whether the facts satisfy the applicable legal standard.” Hobbs at ¶ 8;

citing Burnside at ¶ 8.

                              Fourth Amendment

      {¶13} “The Fourth Amendment to the United States Constitution, as

applied to the states through the Fourteenth Amendment, provides: ‘The

right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.’ ” State v. Eatmon, 4th Dist. Scioto No.

12CA3498, 2013-Ohio-4812, ¶ 11. “Section 14, Article I of the Ohio

Constitution also prohibits unreasonable searches and seizures.” Id.

“Because Section 14, Article I and the Fourth Amendment contain virtually

identical language, the Supreme Court of Ohio has interpreted the two

provisions as affording the same protection.” Id.; citing State v. Orr, 91 Ohio

St.3d 389, 391, 745 N.E.2d 1036 (2001).

      {¶14} “ ‘The Warrant Clause of the Fourth Amendment protects

commercial buildings as well as private homes. To hold otherwise would

belie the origin of the Amendment, and the American colonial experience. *

* *’ ” State v. Penn, 61 Ohio St.3d 720, 723, 576 N.E.2d 790 (1991);
Lawrence App. Nos. 17CA15 and 17CA16                                          10

quoting Marshall v. Barlow’s, Inc. 436 U.S.307, 311-312, 98 S.Ct. 1816,

(1978). The Supreme Court of Ohio has further held that “Ohio’s parallel

provision to the Fourth Amendment also protects commercial buildings in

the same manner it protects private homes and offices * * *.” Id.

      {¶15} “Searches and seizures conducted without a prior finding of

probable cause by a judge or magistrate are per se unreasonable under the

Fourth Amendment, subject to only a few specifically established and well-

delineated exceptions.” Id. at ¶ 12; citing Katz v. United States, 389 U.S.

347, 357, 88 S.Ct. 507 (1967). “ ‘Once the defendant demonstrates that he

was subjected to a warrantless search or seizure, the burden shifts to the

[S]tate to establish that the warrantless search or seizure was constitutionally

permissible.’ ” Id.; quoting State v. Smith, 4th Dist. Ross No. 12CA3308,

2013-Ohio-114, ¶ 12.

      {¶16} It is clear that in this case, law enforcement visited Sky Lake

four times to gather information and make observations without a warrant.

Further, the observations made and information gathered during those

warrantless entries into Sky Lake served as the basis for the later issuance of

a search warrant, which resulted in the confiscation of several gambling

machines and over $68,000.00.

                                   Consent
Lawrence App. Nos. 17CA15 and 17CA16                                           11

      {¶17} “One of the well-delineated exceptions to the general

prohibition against a warrantless search occurs when the person consents to

the search.” See State v. Bloomfield, 4th Dist. Lawrence No. 14CA3, 2015–

Ohio–1082, ¶ 29; citing State v. Ossege, 2014–Ohio–3186, 17 N.E.3d 30,

¶ 13 (12th Dist.), and State v. Morris, 42 Ohio St.2d 307, 318, 329 N.E.2d

85 (1975). Consent is not an exception to the warrant requirement that is

premised upon exigent circumstances; rather it is a decision by a citizen to

waive Fourth Amendment rights. Katz, Ohio Arrest, Search & Seizure,

Section 20:3 (2015). “No Fourth Amendment violation occurs when an

individual voluntarily consents to a search.” State v. Carothers, 2015–Ohio–

4569, 47 N.E.3d 483, ¶ 25 (5th Dist.); citing United States v. Drayton, 536

U.S. 194, 207, 122 S.Ct. 2105 (2002). Consent searches are an important

tool in police investigations because “a valid consent may be the only means

of obtaining important and reliable evidence.” Schneckloth v. Bustamonte,

412 U.S. 218, 227–228, 93 S.Ct. 2041 (1973).

      {¶18} Consent 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.” Illinois v. Rodriguez, 497 U.S. 177, 181, 110

S.Ct. 2793 (1990). “The authority which justifies third-party consent does

not rest upon the law of property, with its attendant historical and legal
Lawrence App. Nos. 17CA15 and 17CA16                                         12

refinements, but rests rather on 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.” State v.

Gordnoshnka, 8th Dist. Cuyahoga No. 86319, 2006-Ohio-563, ¶ 11; citing

United States v. Matlock, 415 U.S. 164, 172, 94 S.Ct. 988 (1974); see also

State v Gibson, 164 Ohio App.3d 558, 2005-Ohio-6380, 843 N.E.2d 224,

¶ 18 (4th Dist.).

      {¶19} The State is required to establish, by clear and convincing

evidence, that consent to the search was freely and voluntarily given by one

with authority to do so. State v. Posey, 40 Ohio St.3d 420, 427, 534 N.E.2d

61 (1988); State v. Connors–Camp, 2nd Dist. Montgomery No. 20850,

2006-Ohio-409 ¶ 29; see also State v. Penn, supra, at 724 (discussing a

terminated employee's versus a current employee’s authority to provide

consent to search his place of employment). “ ‘[W]hether a consent to

search was in fact “voluntary” or was the product of duress or coercion,

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

the circumstances.’ ” Posey at 427; quoting Schneckloth, supra, at 227.

Further, it is not necessary that the consenting third party have actual
Lawrence App. Nos. 17CA15 and 17CA16                                          13

authority over the premises. State v. Portman, 2nd Dist. Clark No. 2013-CA-

68, 2014-Ohio-4343, ¶ 13, citing United States v. Ayoub, 498 F.3d 532, 537

(6th Cir.2007). Even 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. Rodriguez at

186.

                                   Analysis

       {¶20} Here, as set forth above, the record reveals that Damon Roberts

and his partner entered Sky Lake, Inc., a public restaurant and pay lake on

several occasions. On the first visit they simply ordered food, drank coffee

and made observations regarding a room marked private that, when the door

would open for people to exit, appeared to contain several screens or

monitors that were lit up and that emitted pinging sounds and bells, which,

in Robert's experience, were likely slot machines. On their second visit, the

two gained entry via the public entrance and went straight to the counter

where they found a clerk working. Roberts asked the clerk for change for a

fifty dollar bill so he could play the games. The clerk obliged, gave him five

ten dollar bills from her apron, and stood by while he and his partner entered

the game room located approximately ten steps away. Once in the game
Lawrence App. Nos. 17CA15 and 17CA16                                             14

room, the men played games, printed vouchers, and then summoned the

clerk as instructed by a sign on the interior door in order to cash out. The

clerk paid them their winnings from cash contained in her apron and they

left. Roberts and his partner made additional visits and had the same

experience in terms of accessing the room and being paid their winnings.

      {¶21} Based upon this fact pattern, we find that the trial court

reasonably concluded that staff at Sky Lake, Inc. impliedly consented to the

entrance of two undercover officers into their game room in order to observe

and play their illegal gambling machines. Further, as noted by the trial

court, it is unclear from the record before us whether or not the clerk who

gave them change to play the gambling machines may have actually buzzed

them in to the game room, or whether the door was simply unlocked. If it

was the latter scenario, we agree with the trial court in its opinion that Sky

Lake, Inc. staff expressly consented to the entry into the game room, despite

it being marked private. We find that State v. Posey, supra, is instructive to

our analysis, and further find it applicable and controlling to our disposition

of this matter.

      {¶22} In State v. Posey, supra, the Supreme Court of Ohio explained

as follows:

      "As the United States Supreme Court has held, '[t]he touchstone
      of Fourth Amendment analysis is whether a person has a
Lawrence App. Nos. 17CA15 and 17CA16                                            15

      "constitutionally protected reasonable expectation of privacy." '
      California v. Ciraolo (1986), 476 U.S. 207, 211, 106 S.Ct.
      1809, 1811, 90 L.Ed.2d 210 (quoting Katz, supra, 389 U.S. at
      360, 88 S.Ct. at 516). Accordingly, '[w]hat a person knowingly
      exposes to the public, even in his own home or office, is not a
      subject of Fourth Amendment protection.' Katz, supra, at 351,
      88 S.Ct. at 511. Entry into a home or office with the consent of
      the owner or occupier is thus not a 'search' within the protection
      of the Fourth Amendment. Maryland v. Macon (1985), 472
      U.S. 463, 469, 105 S.Ct. 2778, 2782, 86 L.Ed.2d 370." Posey at
      427.

However, we are also mindful that an individual may preserve an area as

private in an area otherwise accessible to the public. Katz, supra, at 351.

      {¶23} Posey involved the entrance into a private, nonprofit fraternal

organization by undercover officer. The undercover officer entered the

private establishment as the guest of a member of the club, and the

doorkeeper at the entrance did not ask to see the credentials of the club

member upon entrance. Id. at 421. Once inside, the pair ordered drinks and

observed gambling activity consisting of electronic draw poker machines

and instant win tickets. Id. The officer actually engaged in those activities

while there, and then, based upon his observations, he obtained a search

warrant and conducted a search. Id.

      {¶24} In Posey, the appellants argued that no voluntary consent could

have been given because the officer did not identify himself as a law

enforcement officer and did not disclose that his purpose there involved the
Lawrence App. Nos. 17CA15 and 17CA16                                            16

investigation of alleged illegal gambling. Id. at 427. Despite the argument,

the Court found, under the totality of the circumstances, that "consent was

freely and voluntarily given and there was no deception perpetrated." Id. In

reaching this decision, the Court noted the following facts: 1) that the only

thing "deceptive" about the officer's entry was that he did not openly identify

himself as law enforcement; 2) that he entered as a guest of a member, "as

could any member of the general public[;] and 3) that apparently no

credentials were checked at the door, which the Court identified as a further

indication that the club had "no reasonable expectation of privacy." Id. at

428. Thus, the Posey court found valid consent was given by staff members

of a private club to enter the club, the entire premises of which was

considered to be private, because no credentials were checked prior to entry.

        {¶25} In contrast, Sky Lake, Inc. is a public establishment that any

member of the public can enter. Further, despite attempting to reserve the

gambling room as private by putting a sign marked "private" on the door

into the game room, staff checked no credentials and asked for no

identification of Roberts and his partner prior to allowing them to enter to

play the machines. Based upon these facts we find Sky Lake, much like the

appellants in Posey, had no reasonable expectation of privacy as to the game

room.
Lawrence App. Nos. 17CA15 and 17CA16                                          17

      {¶26} Ultimately, the Supreme Court of Ohio in Posey held as

follows:

      "Accordingly, we hold that when an individual gives consent to
      another to enter a private area wherein illegal activities are
      being conducted, the consent does not lose its status of being
      freely and voluntarily given merely because it would not have
      been given but for the fact that the other person failed to
      identify himself as a police officer."

Others courts have adopted and applied the reasoning set forth in Posey as

well. See State v. Loom Lodge 1245, et al., 10th Dist. Franklin Nos. 90AP-

415, 90AP-438, 90AP-439, 90AP-567 and 90AP-575, 1990 WL 179968

(two police officers gained entry to various lodges by virtue of their private

membership to investigate whether illegal gambling activities were

occurring, where they ordered drinks, observed and played gambling

machines and then left without revealing their identity, using the information

gathered to obtain a search warrant); State v. VFW Post 431, 2004-Ohio-

3566, ¶ 47-48 (involving a scenario where a law enforcement officer made

two entries into the VFW, by virtue of his personal membership, without a

warrant to gather information used to obtain a warrant); State v. Baker, 87

Ohio App.3d 186, 191-192, 621 N.E.2d 1347 (1993) (applying Posey to a

scenario involving an undercover officer gaining entry to a private hall by

invitation of a member, where the officer did not encounter any person at the

door and no one checked his credentials.)
Lawrence App. Nos. 17CA15 and 17CA16                                           18

      {¶27} In Loom Lodge, the court reasoned as follows:

      "Here, the invitation to enter was for the purpose of engaging in
      all the activity available at the post upon payment of the
      appropriate price, including the gambling activity. Thus,
      although the entry was not expressly for the purpose of
      engaging in gambling activity, it was one of the activities
      permitted." Loom Lodge at *3.

The Loom Lodge court also reasoned that the officers' initial entry into the

Lodge was not a search, nor a seizure, but rather that "[a]ll they gained was

what their eyes could observe in plain view once they gained entry," and that

"this information was then used as a basis for obtaining a search warrant,

and only upon execution of this search warrant was evidence obtained and

seized." Id. Under those circumstances, the court reasoned that there was

nothing indicating that the entry was unlawful, even though the court

characterized it as "deceptive," "where the officers seized no evidence and

conducted no real search[.]" Thus, even characterizing the officers' entry as

deceptive, the Loom Lodge court, relying on Posey, found the officers' entry

into the private lodge to be lawful and thus, any observations of items in

plain view to be fair game, in light of their lawful presence in the club.

      {¶28} Considering the above-cited case law, which consistently finds,

relying on the Supreme Court of Ohio's holding in Posey, supra, that entry

by undercover officers into private clubs is lawful 1) when the officers enter

as a member without disclosing that they are police officers; 2) enter with a
Lawrence App. Nos. 17CA15 and 17CA16                                          19

member through a door where a doorperson is present but does not request

to see the credentials of the member prior to entry; or 3) enter with a

member through a door without encountering a person or having to provide

credentials. We find the reasoning of Posey applies, even more so, to the

facts herein where the establishment at issue is not a private club, but rather

a public restaurant and pay lake. Although we are mindful Appellants do

have a right to maintain certain areas as private in their otherwise public

facility, the facts here do not demonstrate that Appellants actually had a

reasonable expectation of privacy as to the game room.

      {¶29} Here, Appellants provided no testimony indicating an

individual had to be a member or had to present certain credentials in order

to enter. There was no testimony indicating what requirements the officers

had to meet in order to lawfully enter the game room. There was also no

testimony that the individuals Roberts saw exiting the room were private

members or had some distinction setting them apart from the general public,

or other restaurant/pay lake customers, which allowed them to lawfully enter

the game room. Instead, the evidence in the record demonstrates that all one

had to do was inform a staff member that he or she wished to play the

machines, and then proceed to walk into the game room. Thus, Appellants
Lawrence App. Nos. 17CA15 and 17CA16                                          20

did not evidence a reasonable expectation of privacy as to the game room,

despite the existence of a sign marked "private" over the door.

      {¶30} Applying the foregoing case law to the facts of this case, we

find that Roberts and his partner lawfully entered Sky Lake, Inc. This

included entry into the game room, without any form of deception and with

the voluntary consent of Appellants, where they proceeded to make lawful

observations confirming their suspicions that illegal gambling activity was

occurring, which served as the basis for the grant of a subsequent warrant.

Under the totality of the circumstances, we find no violation of the Fourth

Amendment under this set of facts. As a result, we find no error on the part

of the trial court in denying Appellants' motions to suppress filed in each

case. Accordingly, both of Appellants' assignments of error are overruled

and the judgments of the trial court are affirmed.


                                                JUDGMENT AFFIRMED.
Lawrence App. Nos. 17CA15 and 17CA16                                           21

                           JUDGMENT ENTRY


      It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellants.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Lawrence County Common Pleas Court to carry this judgment into
execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.

                                       For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland, Judge




                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
