{¶ 2} Sheriff deputies were called to the residence of Paul and his wife, Deborah ("Deborah"), on January 12, 2002, in response to a domestic complaint. Upon arrival and after observing injuries to Deborah, Paul was arrested and taken to the Ashtabula County jail. Deborah proceeded to inform the deputies remaining at the scene about some drugs that were kept in a safe at the residence. Deborah executed a consent form consenting to a search of the residence, a shed, and a vehicle.
{¶ 3} Since Deborah did not know the location of the key to the safe, she and the deputies began to search the residence for the key. At some point, Deborah located a ring of keys. After trying each of the keys on the safe, however, it was determined that none of the keys were for the safe. Thus, the search for the key continued. Deputy Paul Dibble ("Deputy Dibble") eventually discovered the key hidden in a plastic еlectrical box located in a cabinet in the same room as the safe. The deputies opened the safe and discovered, among other items, methamphetamine and marijuana.
{¶ 4} Paul was charged with trafficking in methamphetamine in violation of R.C.
{¶ 5} On May 24, 2002, Paul filed a motion to suppress. The trial court conducted a hearing regarding the motion on July 17, 2002. Deborah testified at the hеaring. After Deborah's testimony, the hearing was continued until November 8, 2002. Deputy Mark Allen ("Deputy Allen"), Deputy Greg Leonhard ("Deputy Leonhard"), Deputy William Niemi ("Deputy Niemi"), and Deputy Dibble testified at the second hearing. On November 15, 2002, the trial court granted Paul's motion to suppress the evidence located in the safe, finding that Deborah "did not have the authority to grant the officers access to thе safe in the computer room, and her repeated references to it as being her husband's safe put the officers on notice of that fact."
{¶ 6} The state timely appealed raising the following assignment of error:
{¶ 7} "The trial court committed reversible error when it granted appellee's motion to suppress evidence."
{¶ 8} In its sole assignment of error, the state argues that the trial court's findings of fact were not supported by competent and credible evidence. The state also argues that the deputies had a reasonable, good faith belief that Deborah had authority to grant consent to the search of the safe. Thus, the state claims there was no Fourth Amendment violation. The state finally asserts that, even if the trial court's findings were supported by clear and convincing evidence, the evidence would be admissible under the inevitable discovery doctrine because the state possessed the requisite probable cause necessary to obtain a search warrant and would have done so if they were not granted consent by Deborah.
{¶ 9} The trial court acts as trier of fact at a suppression hearing and must weigh the evidence and judge the credibility of the witnesses. State v. Hill,
{¶ 10} In this case, since the state challenges the trial court's factual determinations, we must first determine whether there is competent and credible evidence to support these determinations. "When considering an apрeal of a ruling on a motion to suppress we review the trial court's findings of fact only for clear error and give due weight to inferences the trial judge drew from the facts." State v. Hummel,
{¶ 11} The trial court found that, since Deborah testified that she did not have permission to access the safe and that she did not have a key or know the location of the key, she was without authority to grant consent to search the safe. Moreover, the trial court found that the deputies were put on notice that she did not have common authority over the safe by her rеferences to the safe as Paul's safe and her lack of knowledge of the key's location and its distinctive shape. Thus, the trial court determined that the deputies did not have a reasonable belief that Deborah had common authority over the safe.
{¶ 12} At the suppression hearing, Deborah testified that she had never been in the safe, that she had never had access to thе safe, that she did not have a key or know where the key was located, and that Paul did not permit her access to the safe. She also testified that, in her conversations with the deputies, she referred to the safe as her husband's safe, that she told the deputies that it was her husband's safe, and that she informed the deputies that she did not know where Paul kept the key.
{¶ 13} Deputy Niemi testified that Deborah referred to the safe as Paul's safe. Deputy Niemi further testified that when he filled out a police report regarding the search, he indicated that Deborah said the safe was "his safe." Deputy Niemi also testified that, to his understanding, it was Paul's safe. Each of the deputies testified that Deborah had no knowledge of the location of the key to the safe. In fact, there was extensive testimony regarding the prolonged search for the key. The testimony reveals that each of the deputies on the scene, at least three in all, and Deborah were searching the residence for the key. At some point, Deborah discovered a ring of keys. Thinking she had found the key to the safe, Deborah unsuccessfully attempted to unlock the safe. Thus, the search continuеd until Deputy Dibble discovered the key hidden in a plastic electrical box located in the cabinet. The testimony indicated that the key was a unique round barrel shaped key. The testimony disclosed that the total search for the key took anywhere between 15 minutes to an hour. Finally, the deputies admitted that they never inquired about Deborah's access to the safe or her authority to enter the safe because they assumed the safe was "joint property."
{¶ 14} Although Deputy Dibble testified that Deborah referred to the safe as "their safe," granting the trial court its due deference in weighing the evidence and the credibility of the witnesses, DeHass,
{¶ 15} The Fourth Amendment provides that "[t]he right of the people tо be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *." The Fourth Amendment is enforceable against the states through the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio (1961),
{¶ 16} "Common authority is * * * not to be implied from the mеre property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal 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-inhаbitants 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, n7 (internal citations omitted). The state bears the burden of establishing the existence of common authority. Rodriguez,
{¶ 17} A spouse is presumed to have authority to consent to a search of all areas of the residence. United States v. Duran
(C.A. 7, 1992),
{¶ 18} The presumption of spousal consent can be rebutted "by showing that the consenting spouse was denied access to the particular area searched." Duran,
{¶ 19} In this case, the evidence demonstrates that Deborah did not have common authority over the safe. At all times, the safe was in the exclusive control of Paul, as Deborah was denied access to the locked safe, as well as to the key to the safe. Moreover, Deborah was not permitted to use the locked safe, nor had she ever done so. Thus, Deborah did not have the authority to consent to the search of the safe. See State v. Masten (Sept. 29, 1989), 3rd Dist. No. 5-88-7,
{¶ 20} The lack of actual common authority, however, does not necessarily render the warrantless search unconstitutional. A warrantless search premised on an officer's reasonable belief that the consenting party had authority to consent to the search оf the premises is lawful. Rodriguez,
{¶ 21} In this case, Deborah repeatedly referred to the safe as her husband's safe. Moreover, she did not have any knowledge regarding the location of the key. Finally, she was unaware of the distinctive characteristics of the key. We agree with the trial court that these facts should have put the deputies on notice that Deborah did not have authority to consent to the search of the safe. See Riley v. Gray (C.A. 6, 1982),
{¶ 22} However, "illegally obtained evidence is properly admitted in a trial court proceeding once it is established that the evidence would have bеen ultimately or inevitably discovered during the course of a lawful investigation." State v. Perkins
(1985),
{¶ 23} Even if the state argued in the trial court that it would have inevitably discovered the contents of the safe because it had probable cause to search and, thus, could have obtained a search warrant, its claim here on appeal, the application of the inevitable discovery doctrine in this situation is inappropriate. "[T]he inevitable discovery doctrine exception does not apply in situations where the government's only argument is that it had probable cause for the search." United States v. Souza (C.A. 10, 2000),
{¶ 24} Otherwise tainted evidence is admissible "if the state learns of the questioned evidence from a source separate and distinct from an illegal source." State v. Smith (1991),
{¶ 25} In this case, thеre is nothing in the record that would indicate that any steps were taken to obtain a warrant. In fact, the record demonstrates that the deputies never attempted to, or even considered, obtaining a warrant. Thus, even though arguably there was sufficient probable cause to obtain a search warrant, application of the inevitable discovery doctrine is not warrаnted in this case because there were no steps taken in an attempt to do so. See Masten, 1989 Ohio App. LEXIS3723, at *20-*21; see, also, Souza,
{¶ 26} Although we recognize the importance of drug enforcement efforts and law enforcement's difficult task in carrying out their duties, "the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all." Arizona v. Hicks (1987),
{¶ 27} For the foregoing reasons, we hold that the state's sole assignment of error is without merit. The decision of the Ashtabula County Court of Common Pleas is affirmed.
Judgment affirmed.
Ford, P.J., and Rice, J., concur.