State v. Sky Lake ( 2018 )

[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.