State v. BarnesState v. Barnes
- Reporters:
- , ,
- Before:
- Preston, Zimmerman, Shaw J.J.
{¶1} Defendant-appellant, Demario Barnes (“Barnes”), appeals the November 17, 2016, judgment entry of sentence of the Marion County Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} This case stems from an arrest warrant served on Barnes on September 9, 2015. On that date, several law enforcement officials traveled to Barnes’s residence on Executive Drive in Marion, Ohio to arrest him for trafficking in drugs. Barnes was arrested without incident. He then requested to use the bathroom and entered his residence with law enforcement in order to do so before being transported to jail. An officer who remained at the scene entered the home without permission and without a warrant, and he spoke to Danielle Cutarelli (“Cutarelli”), who lived with Barnes, about Barnes’s arrest and about the drugs that were in plain view in the apartment. Cutarelli then signed a document indicating that she consented to a search of the residence. The search that followed revealed drugs and weapons.
{¶3} On September 24, 2015, the Marion County Grand Jury indicted Barnes on one count of aggravated trafficking in drugs in violation of
{¶4} On May 3, 2016, Barnes filed a motion to suppress evidence in which he sought the suppression of evidence gathered from the residence because, as relevant here, Curtarelli’s consent to the search of the residence was involuntary and was tainted by the initial entry of law enforcement into the home. Barnes further argued in his motion to suppress evidence that the search was invalid because some of the officials involved in the search were probation officers rather than police
{¶5} On October 4, 2016, Barnes appeared for a change-of-plea hearing and pled no contest to Counts Two and Three of the superseding joint indictment with the attendant specifications pursuant to a negotiated plea agreement. (Doc. No. 62). All other counts were dismissed. (Doc. No. 78). On November 17, 2016, the trial court sentenced Barnes to five years in prison and a $10,000 fine as to Count Two, as well as 30 months in prison as to Count Three, with the prison terms to be served concurrently for a total of five years of incarceration. (Id.). The trial court further ordered that Barnes’s interest in the property described in the sрecifications be
{¶6} Barnes filed his notice of appeal on November 23, 2016. (Doc. No. 81). He brings two assignments of error for our review.
Assignment of Error No. I
The Trial Court Erred When It Found That A Significant Intervening Event Had Occurred That Dissipated The Taint Of The Illegal Entry Before The Written Consent to Search Was Given.
{¶7} In his first assignment of error, Barnes argues that the trial court erred when it concluded that a significant intervening event occurred, purging the taint of law enforcement’s allegedly illegal entry into Barnes’s residence, which took place before the consent to search was given. Specifically, Barnes argues his request to use the bathroom at his residence was not a significant intervening event that purged the taint caused by law enforcement’s initial entry into his residence. Barnes also argues that Cutarelli’s consent was involuntary.
{¶8} A review of the denial of a motion to suppress involves mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to evaluate the evidence and the credibility of witnesses. Id. See also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a motion to suppress, “an appellate court must accept the trial court’s findings of fact
{¶9} The
{¶11} In determining whether the taint of the initial entry has been removed, we must consider the temporal proximity of the initial illegality to the consent, the presence of any intervening circumstances between the illegality and the consent, and, in particular, the purposе and flagrancy of official misconduct. U.S. v. Delancy, 502 F.3d 1297, 1309 (11th Cir.2007). The analysis is a fact-specific one, and no single fact is dispositive. Id., citing Brown v. Illinois, 422 U.S. 590, 603 95 S.Ct. 2254 (1975). Though the factors enumerated above provide a useful framework, we must not allow this factor-based analysis to obscure the underlying question, which “generally involves a pragmatic evaluation of the extent to which the illegal police conduct caused the defendant’s response.” Id. at 1310, quoting U.S. v. Bailey, 691 F.2d 1009, 1013 (11th Cir.1982).
{¶12} The doctrine of inevitable discovery provides that tainted evidence remains admissible when evidence discovered during аn initial illegal search would have been ultimately or inevitably discovered during a lawful investigation. State v. Workman, 3d Dist. Auglaize No. 2-15-05, 2015-Ohio-5049, ¶ 41, citing State v. Perkins, 18 Ohio St.3d 193, 196 (1985). The rule permits the State to remove the
{¶13} A video-taped deposition in this matter took place on August 30, 2016. (Aug. 30, 2016 Depo. at 3). At that proceeding, the state called Detective David Troutman (“Troutman”) of the Marion Police Department. (Id. at 7). Troutman testified that Cutarelli appeared to be coherent during his interactions with her—she did not appear to be under the influence of anything, and she responded appropriately to questions that were put to her. (Id. at 15). Troutman further testified that Cutarelli was not arrested and was never told that she would be placed under arrest. (Id. at 20).
{¶14} On cross-examination, Troutman averred that Cutarelli was told that she had the right to refuse consent to the search, was never placed in custody, and was never read her Miranda rights. (Id. at 63). Troutman also testified that none of the officers drew a firearm. (Id. at 64). Troutman stated that, during the course of
{¶15} On re-direct examination, Troutman testified that Cutarelli never requested that law enforcement leave the residence. (Id.). Troutman further asserted that he read the consent-to-search form to Cutarelli. (Id. at 84). This form, signed by Cutarelli, attests to the fact that she gave the permission “freely and voluntarily, without any threats or promises having been made.” (Defendant’s Ex. B). It further informs Cutarelli of the fact that she has the right to refuse consent. (Id.). Troutman tеstified that Cutarelli seemed to understand the consent form. (Aug. 30, 2016 Tr. at 84). He asserted that Cutarelli asked no questions about the document. (Id.). Troutman testified that at no point during his conversation with Cutarelli did she indicate that she did not understand what was happening. (Id. at 86). Troutman asserted that he never threatened or yelled at Cutarelli, nor did he see any other officers do so. (Id. at 86).
{¶17} The State next called Marion County Adult Probation Officer Nate George (“George”). (Id. at 48). On direct examination, Georgе testified that Cutarelli was responsive to the questions that Troutman asked her. (Id. at 54). George further averred that, to his knowledge, Cutarelli did not indicate being ill. (Id.). He testified that Cutarelli appeared coherent and that no one screamed at, threatened, or handcuffed her. (Id. at 54-55).
{¶18} On cross-examination, George testified that he never heard anyone read Cutarelli her Miranda rights. (Id. at 64). George asserted that the length of
{¶19} On re-direct examination, George testified that he did not recall hearing Cutarelli ask anyone to leave the residence. (Id. at 75).
{¶20} The State next called Detective Scott Sterling (“Sterling”) of the Marion City Police Department. (Id. at 96). On direct examination, Sterling testified that he did not believe Cutarelli was ever in handcuffs and that he did not see anyone yell at or threaten her. (Id. at 99). Sterling further testified that Cutarelli never instructed officers to leave the residence. (Id. at 100).
{¶21} The State also called Lieutenant Mark Elliot (“Elliot”) of the Marion City Police Department, who testified that he spoke to Cutarelli and that she was coherent when he did so. (Id. at 121, 125).
{¶22} The State then called Chief Probation Officer Jennifer Miller (“Miller”) of the Marion County Adult Probation Department. (Id. at 153). On direct examination, Miller testified that the length of time between the entry into the residence and the search was approximately five to ten minutes. (Id. at 156). Miller averred that Cutarelli never refused consent and never instructed those conducting the search to leave the residence. (Id. at 157).
{¶23} We conclude that the trial court did not err by denying Barnes’s motion to suppress evidence because the trial court’s conclusion that Cutarelli’s consent
{¶24} In State v. Clements, the Fourth District Court of Appeals confronted a set of facts in which law enforcement had entered the residence of the defendant suspecting that he was engaged in the manufacture of drugs. 4th Dist. Hocking No. 15CA19, 2016-Ohio-3201, ¶ 7-8. Though the defendant was not present when law enforcement arrived and entered the residence, he soon arrived. Id. at ¶ 11. Law enforcement testified that they made clear to him that he was free to leave and was not in custody or under arrest. Id. Law enforcement testified that Clements signed a consent form allowing them to conduct a search of his residence, though that form was eventually lost and so was not introduced into evidence at the suppression hearing. Id. at ¶ 11-12. Law enforcemеnt further testified that they did not observe anything leading them to believe that Clements had difficulty understanding what it meant to consent to a search or that Clements had any physical or mental malady that rendered him less competent than any other member of the public. Id. at ¶ 12.
{¶25} Similar facts are now before us. Agent Komar at the scene, as well as multiple law enforcement and probation officers, testified that Cutarelli was cooperative and compliant in her dealings with them. State v. Dean, 12th Dist. Fayette No. CA2013-03-007, 2014-Ohio-448, ¶ 14 (noting that a willingness to cooperate and speak with law enforcement weighs in favor of a finding of voluntariness). See also State v. Fry, 4th Dist. Jackson No. 03CA26, 2004-Ohio-5747, ¶ 25 (noting that “polite and courteous” interactions between law enforcement and one who consents supports a finding of voluntariness). The testimony uniformly indicated that no law enforcement officials threatened or yelled at Cutarelli. Fry at ¶ 25. Moreover, testimony indicated that Cutarelli was never threatened with arrest or put in custody, nor did she ever indicate a desire to have officers leave her home during the approximately ten minutes prior to her consent or at any time thereafter. Id. Testimony also established that the consent was given at Cutarelli’s residence and not at a police station. Multiple witnesses further testified that Cutarelli did not manifest any mental or physical difficulties and demonstrated no lack of education or intelligence that would cast doubt on her
{¶26} Second, the trial court’s conclusion that the taint of the initial entry was dissipated is supported by competent and credible evidence. U.S. v. Delancy, 502 F.3d 1297, 1313-1314 (11th Cir.2007). In DeLancy, the Eleventh Circuit Court of Appeals confronted a set of circumstances in which police entered and searched a residence, having been given consent to do so by the defendant’s girlfriend Godfrey, who shared the residence with him. Id. at 1301-1302. The police in DeLancy conducted an illegal protective sweep of the residence. Id. at 1308. In concluding that the taint of the illegal search had dissipated by the time consent was rendered, the court in DeLancy found that a “relatively brief period” of ten to fifteen minutes between the illegal search and the consent weighed in favor of finding that
{¶29} Even if we were to determine that the trial court’s conclusions that Cutarelli’s consent was voluntary and was attenuated from the initial entry by police are not supported by competent and credible evidence, the search still could be upheld based on the doctrine of inevitable discovery. State v. Foster, 3d Dist. Allen No. 1-14-54, 2015-Ohio-3401, ¶ 9. Barnes’s request to use the bathroom bore no connection to the entry into the residence by law enforcement. That is, even if law enforcement did not enter the residence, Barnes inevitably would have requested to use the facilities, and law enforcement, in the course of their independent investigation of Barnes, would have accompanied Barnes into the residence in order for him to use the facilities. Barnes would have consented to the presence of the police in his home so that he could do so. Barnes’s hypothetical consent would have made law enforcement aware of the drugs in the vicinity of Cutarelli, as well as the drugs and weapons in the bathroom. That Barnes was in custody would not have rendered his hypothetical consent involuntary or coerced. State v. Riggins, 1st Dist. Hamilton No. C-030626, 2004-Ohio-4247, ¶ 18.
{¶30} For the reasons explained above, Barnes’s first assignment of error is overruled.
The Trial Court Erred When It Found That The Probation Officers Had Authority To Search [The Residence] Pursuant To The Written Consent Obtained Without Addressing Their Authority As Probation Officers.
{¶31} In his second assignment of error, Barnes argues that the trial court erred when it found that the probation officers who aided in this search had the authority to do so under the consent form that was signed. Specifically, Barnes argues that probation officers are without such authority because
{¶32} To the extent Barnes argues that the trial court failed to apply the proper statutes in this case, we review this assignment of error de novo. State v. Hillman, 10th Dist. Franklin Nos. 09AP-478, 09AP-479, and 09AP-480, 2010-Ohio-256, ¶ 11, citing State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, ¶ 6-7
{¶33} We conclude that Barnes’s statutory arguments are unpersuasive. Barnes’s statutory arguments turn on the fact that some of the individuals involved in this search were probation officers rather than police officers. This distinction is meaningless because “[p]robation officers have all the powers of regulаr police officers[.]”
{¶34} We are cognizant of the fact that the scope of a search based on consent is determined by the scope of the consent itself and that the requiremеnt to procure a warrant is waived only to the extent granted by the consent. State v. Brown, 7th Dist. Columbiana No. 03CO49, 2004-Ohio-3364, ¶ 13, quoting U.S. v. Dichiarinte,
{¶35} Though Barnes argues incorrectly that applicable statutes treat probation officers differently from police officers, he cites no authority for the рroposition that a consent form that allows “officers” to search a residence must refer only to police officers but not to probation officers. Nothing in the record before us indicates that a reasonable person would have understood Cutarelli’s consent permitting officers to search the residence to be applicable to certain law enforcement officers but not to others.
{¶36} We therefore conclude that the trial court did not err in concluding that the probation officers who participated in this search had the authority to do so. Barnes’s second assignment of error is overruled.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
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