2019 Ohio 5002
Ohio Ct. App.2019Background
- Paul M. Barnhart pleaded guilty and received Intervention in Lieu of Conviction (IILC) in 2014 and signed a written probation/search-waiver consenting to warrantless residence checks based on reasonable suspicion.
- In December 2014 police and a probation officer, acting on anonymous tips and probation confirmation, conducted a warrantless probation check of Barnhart’s residence.
- During the check officers encountered Barnhart’s then-girlfriend, Holly Robuck, in the shared bedroom attempting to hide cocaine in a clothes basket; officers seized cocaine, pills, drug paraphernalia, a ledger, and cash.
- Barnhart was later charged in a separate indictment with multiple drug offenses arising from that search; at trial Robuck testified she hid drugs and cooperated with police in exchange for no charges against her.
- Barnhart moved to suppress evidence (motion not ruled on at the lower court level), was convicted on several counts, sentenced to an aggregate 4 years 11 months, and appealed raising four assignments: suppression/admission of items seized from Robuck, ineffective assistance for not filing suppression and stipulating exhibits, cellphone evidence admission, and jury instructions on constructive possession.
Issues
| Issue | State's Argument | Barnhart's Argument | Held |
|---|---|---|---|
| Admissibility of items seized from Robuck’s shared bedroom | Search was authorized by Barnhart’s probation/search waiver and reasonable suspicion at probation check | Evidence from Robuck’s belongings (no consent/apparent authority) should be suppressed as outside waiver scope | Not addressed on merits: issue waived because argument was not raised below; assignment not well-taken |
| Ineffective assistance for failing to move to suppress and stipulating exhibits | Counsel’s choices were reasonable; suppression motion based on Robuck’s rights would be meritless | Counsel deficient for not suppressing evidence seized from shared areas and for stipulating State’s Exhibits 3,4,7 | Denied: counsel not ineffective because motion premised on third party’s rights would fail; stipulated-exhibits claim not briefed properly and waived |
| Admission/use of cellphone evidence | No argument presented at trial that cellphone search exceeded waiver | Cellphone and its contents were seized without a warrant and should be excluded | Not well-taken: record shows no cellphone-derived evidence was used at trial and issue was raised for first time on appeal (waived) |
| Jury instruction on constructive possession | Court’s written instruction applied; state asked court to apply constructive-possession instruction to all counts | Jury should have been instructed that third-party possession (Robuck) could explain presence of contraband; omission prejudiced Barnhart | Denied: court correctly instructed on presumption of innocence and constructive/actual possession; verbal clarification applied constructive-possession to all counts and evidence warranted instructions |
Key Cases Cited
- Mapp v. Ohio, 367 U.S. 643 (1961) (evidence obtained in violation of Fourth Amendment must be excluded)
- United States v. Knights, 534 U.S. 112 (2001) (probationers have a diminished expectation of privacy; searches under a search-condition require reasonable suspicion)
- Alderman v. United States, 394 U.S. 165 (1969) (only those whose Fourth Amendment rights were violated may seek suppression)
- United States v. Salvucci, 448 U.S. 83 (1980) (possession defendants may invoke exclusionary rule only if their own rights were violated)
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)
- State v. Bradley, 42 Ohio St.3d 136 (1989) (Ohio adoption of Strickland two-part test)
- State v. Norman, 21 N.E.3d 1153 (12th Dist. 2014) (warrantless probation search of cotenant’s residence limited to common areas the probationer occupies or controls)
- State v. Dennis, 79 Ohio St.3d 421 (1997) (Fourth Amendment rights are personal and may not be vicariously asserted)
- State v. Nields, 93 Ohio St.3d 6 (2001) (counsel not ineffective where suppression motion would be tactical or unlikely to succeed)
- Cromer v. Children’s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257 (2015) (trial court must give legally correct and factually warranted jury instructions)