State v. Jones , 2013 Ohio 2231 ( 2013 )

[Cite as State v. Jones, 2013-Ohio-2231.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25388
v. : T.C. NO. 11CR4276
SAMUEL JESSE JONES, III : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 31st day of May , 2013.
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MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, 15 W. Fourth Street, Suite 100,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} Defendant-appellant Samuel J. Jones, III, appeals his conviction and
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sentence for possession of heroin, in violation of R.C. 2925.11(A), a felony of the fifth
degree, which was entered upon his plea of no contest made following the trial court’s denial
of his motion to suppress. Jones filed a timely notice of appeal with this Court on
September 27, 2012.
{¶ 2} On November 10, 2010, Jones was placed on community control as part of
his sentence after being convicted of possession of heroin by the Greene County Court of
Common Pleas. As part of his community control, Jones was required to sign a Greene
County Probation Agreement. Of particular significance to the instant appeal is Rule eleven
in the agreement, which states as follows: “I will be subject to search of my person or
property in a reasonable manner and in a reasonable time by my Probation Officer when
there are grounds to believe a violation of community control has occurred or is about to
occur.”
{¶ 3} Probation Officer Matthew Johnson was assigned to Jones’ case at the
beginning of July, 2011. At the time that he received the assignment, Johnson’s supervisor
told him to “[w]atch this guy [Jones] closely because we’re getting calls on him.” Johnson
testified that he had an initial face-to-face meeting with Jones around the same time period.
Johnson testified that Jones informed him that he was residing at 2501 Uhl Court in
Kettering, Ohio, with his son who was approximately eighteen to twenty-one years old at the
time. Johnson acknowledged that at that time, Jones was stable and taking his medication
as needed. Johnson also testified that as a result of the meeting, he did not believe that
Jones was violating the terms of his community control at that time.
{¶ 4} Johnson, however, testified that at some point earlier in May of 2011, the
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probation department received an anonymous phone call from an individual who stated that
he or she was worried that Jones was developing a problem with prescription pills. The
anonymous caller further stated that they believed that Jones was providing the pills to his
son and his son’s friend.
{¶ 5} Johnson also testified that on June 30, 2011, Jones’ ex-wife contacted the
probation department and stated that she had been cleaning and discovered a heroin capsule
in the chair where her son had recently been sitting in her residence. Jones’ ex-wife did not
bring the empty capsule to the Greene County Probation Department. Rather, per Johnson’s
testimony, she allegedly took the empty capsule to the Bellbrook Police Department. But this
was never verified. Moreover, Johnson testified that Jones’ ex-wife visited him at the
probation department on August 1, 2011(after Johnson’s face-to-face meeting with Jones)
and informed him that she was very worried about Jones and was concerned that he was
getting their son involved with heroin. We note that months earlier in September and
November of 2010, Jones tested positive for morphine. Johnson, acknowledged, however,
that Jones had not tested positive for contraband since that time.
{¶ 6} On August 4, 2011, Johnson, accompanied by his supervisor, Brian Martin,
made an unannounced visit to Jones’ residence in order to investigate the alleged drug
activity. Upon arriving, Johnson knocked on the door, and approximately fifteen seconds
later, Jones opened the door slightly. Johnson testified that Jones was trying to control his
dog when he opened the door. Jones left the door ajar and went to put the dog in the
backyard. When Jones left, Johnson and Martin entered the residence. Johnson testified
that he did not ask permission to enter Jones’ residence, nor did he recall if Jones invited
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them in.
{¶ 7} Once Jones returned from letting the dog out, Johnson asked him if anyone
else was in the residence. Jones responded “no,” but Martin checked the house to be sure.
While clearing the residence, Martin located a gun in one of the rooms. While Martin was
looking around, Johnson asked Jones to come over near the front door to look at his
forearms. Johnson observed some dried blood on Jones’ forearms. Johnson testified that
he asked Jones the last time he used heroin. Jones stated that he had used heroin that same
morning. Johnson placed Jones under arrest, handcuffed him, and patted him down.
While searching Jones, Johnson found a brown vial containing heroin in his right front
pocket. Upon further questioning from Johnson, Jones stated that he had bought the heroin
the night before and used it approximately three times before the probation officers’ arrival
that day. Jones was subsequently charged with possession of heroin.
{¶ 8} On February 8, 2012, Jones was indicted for one count of possession of
heroin. At his arraignment on February 23, 2012, Jones stood mute, and the trial court
entered a plea of not guilty on his behalf. Jones filed a motion to suppress on March 30,
2012. A hearing was held on said motion before the trial court on June 29, 2012. On July
17, 2012, the trial court issued a decision overruling Jones’ motion to suppress.
{¶ 9} On August 1, 2012, Jones entered a no contest plea to one count of
possession of heroin. The trial court found him guilty and sentenced him to community
control sanctions not to exceed five years.
{¶ 10} It is from this judgment that Jones now appeals.
{¶ 11} Jones’ sole assignment of error is as follows:
[Cite as State v. Jones, 2013-Ohio-2231.]
{¶ 12} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S
MOTION TO SUPPRESS.”
{¶ 13} In his sole assignment, Jones contends that the trial court erred when it
overruled his motion to suppress. Specifically, Jones argues that the probation officers
lacked reasonable suspicion of criminal activity. Additionally, Jones asserts that the
probation officers lacked reasonable grounds to believe that a violation of probation had
occurred. Jones also asserts that he did not consent to the probation officers’ warrantless
entry into his residence.
{¶ 14} In regards to a motion to suppress, “the trial court assumes the role of trier of
facts and is in the best position to resolve questions of fact and evaluate the credibility of
witnesses.” State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist.1996),
quoting State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). The
court of appeals must accept the trial court’s findings of fact if they are supported by
competent, credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No. 20662,
2005-Ohio-3733, citing State v. Retherford, 93 Ohio App.3d 586, 639 N.E.2d 498 (2d
Dist.1994). Accepting those facts as true, the appellate court must then determine, as a
matter of law and without deference to the trial court’s legal conclusion, whether the
applicable legal standard is satisfied. Id.{¶ 15} Pursuant to R.C. 2967.131(C), a probation officer who is “engaged within
the scope of [his] duties or responsibilities” may conduct a warrantless search of the
defendant’s person or property if the officer has “reasonable grounds to believe” that the
defendant “is not abiding by the law or otherwise is not complying with the terms and
conditions” of his community control sanctions. Although the term “reasonable grounds” is
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not defined in R.C. 2967.131(C), the statute appears to have been enacted in response to the
U.S. Supreme Court’s decision in Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97
L.Ed.2d 709 (1987), which considered the constitutionality of a similarly worded Wisconsin
statute that permitted probation officers to conduct a warrantless search of a probationer’s
residence so long as the probation officers had reasonable grounds to believe that
contraband was present. State v. Mattison, 2d Dist. Montgomery No. 17554, 1999 WL
957648 (September 3, 1999).
{¶ 16} Under the facts in Griffin, a probation officer conducted a warrantless search
of the home of the defendant, a probationer, after receiving an unauthenticated tip from an
unidentified police officer that there were or might be guns in his home. Id. at 871, 878.
The officer found a weapon in defendant’s home, and he was subsequently charged with
Possession of a Firearm by a Convicted Felon. The trial court denied the defendant’s
motion to suppress, and he was subsequently convicted. Both the intermediate appellate
court and the Wisconsin Supreme Court affirmed Griffin's conviction.
{¶ 17} The United States Supreme Court held that the search of the defendant's
home did not violate the Fourth Amendment because it was carried out pursuant to a
regulation that itself satisfies the Fourth Amendment's reasonableness requirement under
well-established principles. Id. at 872-873. The Griffin court began its analysis by stating
that [a] probationer’s home, like anyone else's, is protected by the Fourth Amendment's
requirement that searches be ‘reasonable.  Id. at 873. The court noted that while it
usually required that searches be conducted only pursuant to warrants supported by probable
cause, it had permitted exceptions when special needs, beyond the normal need for law
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enforcement, make the warrant and probable-cause requirement impracticable.  Id.,
quoting New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985).
The court found that a state's operation of a probation system is a special need of the state,
beyond the normal need for law enforcement, which permitt[ed] a degree of impingement
upon privacy that would not be constitutional if applied to the public at large. Griffin,
supra, at 875. The court concluded that the special needs of Wisconsin's probation system
made the warrant requirement impracticable, and justified replacing the probable cause
standard with that of “reasonable grounds. Specifically, the court stated:
[i]n some cases-especially those involving drugs or illegal weapons-the
probation agency must be able to act based upon a lesser degree of certainty
than the Fourth Amendment would otherwise require in order to intervene
before a probationer does damage to himself or society. The agency,
moreover, must be able to proceed on the basis of its entire experience with
the probationer, and to assess probabilities in the light of its knowledge of his
life, character, and circumstances.
{¶ 18} Accordingly, in order to establish “reasonable grounds,” an officer need not
possess the same level of certainty that is necessary to establish “probable cause.” State v.
Karns, 196 Ohio App.3d 731, 2011-Ohio-6109, 965 N.E.2d 352, ¶ 33 (5th Dist.). Instead,
the officer's information need only establish the likelihood that contraband will be found
in a probationer’s home. Id.{¶ 19} In United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497(2001), the United States Supreme Court upheld probation searches conducted pursuant to
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a condition of probation, provided that a reasonable suspicion” exists that evidence of
criminal activity can be found in a probationer’s home. Id. at 120-121, 122 S.Ct. 587, 151
L.Ed.2d 497. Although the Fourth Amendment ordinarily requires the degree of
probability embodied in the term probable cause, a lesser degree satisfies the Constitution
when the balance of governmental and private interests makes such a standard reasonable.
Those interests warrant a lesser than probable-cause standard here. When an officer has
reasonable suspicion that a probationer subject to a search condition is engaged in criminal
activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the
probationer’s significantly diminished privacy interests is reasonable. (Citations omitted).
Knights at 121, 122 S.Ct. 587, 151 L.Ed.2d 497. The consent form in Knights stated that a
search could be conducted without a warrant. Karns,196 Ohio App.3d 731, at ¶ 34.
{¶ 20} Upon review, we conclude that the trial court did not err when it held that
Probation Officer Johnson had “reasonable grounds” upon which to believe that Jones had
violated the terms of his probation and to execute a search of his person and his property.
Prior to making the unannounced visit to Jones’ residence, Johnson was aware of an
anonymous call warning that Jones was using drugs. Jones’ ex-wife contacted the
probation department and stated that she had been cleaning and discovered a heroin capsule
in the chair where her son had recently been sitting in her residence. She believed the
capsule had been given to her son by Jones. Johnson also spoke with Jones’ ex-wife in
person. She stated that she was very worried about Jones using drugs and was concerned
that he was getting their son involved with heroin. While more remote in time, Johnson
knew that Jones had tested positive for morphine twice in September and November of
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2010. Furthermore, Johnson’s supervisor had alerted him “to watch this guy [Jones]
closely.” Based on the foregoing, we find that the trial court did not err in finding that
Johnson and Martin’s search of Jones’ person and property was supported by reasonable
grounds.
{¶ 21} Lastly, we find that based upon the explicit terms of his probation
agreement, Jones’ consent was unnecessary prior to Johnson and Martin’s entry into his
residence as the officers possessed a reasonable suspicion that contraband was present.
{¶ 22} Jones’ sole assignment of error is overruled.
{¶ 23} Jones’ sole assignment of error having been overruled, the judgment of the
trial court is affirmed.
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HALL, J. and WELBAUM, J., concur.
Copies mailed to:
Michele D. Phipps
Brock A. Schoenlein
Hon. Barbara P. Gorman