State v. Jones , 2023 Ohio 844 ( 2023 )

[Cite as State v. Jones, 2023-Ohio-844.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220007
TRIAL NO. B-2002096
Plaintiff-Appellee, :
vs. :
MICHAEL JONES, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Case Remanded
Date of Judgment Entry on Appeal: March 17, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David H. Hoffmann,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendant-appellant Michael Jones challenges his convictions for drug
possession and drug trafficking in four assignments of error. Finding merit to his first
assignment of error, we hold that Jones received unconstitutionally ineffective
assistance from his trial counsel at the suppression hearing. We therefore order a
limited remand to the trial court for further proceedings consistent with this opinion
and stay our consideration of the remainder of Jones’s assignments of error.
I. Facts and Procedure
{¶2} In 2020, the Cincinnati Police Department received anonymous
complaints of drug activity occurring at 787 Clinton Springs Avenue in Cincinnati,
Ohio. During the weeks of surveillance, police watched Jones come and go from the
house. One morning, Officers Mark Bode and Tom Weigand watched Jones exit from
the house and enter the passenger seat of a black van. Police followed and watched as
the van stopped beside a parked car and exchanged something through the passenger-
side window. At a nearby gas station, police arrested Jones and found cash, a scale, a
wallet, keys, cell phones, and what appeared to be a small amount of drugs. Police took
Jones to the Hamilton County Justice Center.
{¶3} With Jones in jail and his keys in hand, a group of officers led by
Sergeant James Davis returned to 787 Clinton Springs Avenue. At the house, officers
opened the front door and announced their presence. William Gaston came to the door
and told the officers that there was no one in the house. Davis informed Gaston that
they were there “doing a search warrant” and placed Gaston in handcuffs on the porch
before officers performed a protective sweep of the house. During the sweep, officers
took note of a small safe in Jones’s third-floor room and found another person,
Matthew Allwood, on the second floor of the house.
2
OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} Two hours after their arrival, officers removed Gaston’s handcuffs for
him to sign a consent-to-search form. Officers took the safe to the police station and,
based on information from the sweep, obtained a search warrant to open the safe.
Relevant here, officers found cash, four digital scales coated in a cocaine and
methamphetamine residue, a heroin-fentanyl mixture, methamphetamine, fentanyl,
methadone, and flualprazolam.
{¶5} Based on items found in the safe, the state indicted Jones on a total of
ten charges, including drug trafficking, aggravated drug trafficking, drug possession,
and aggravated drug possession. Before trial, Jones moved to suppress the evidence
seized from the safe, arguing that Gaston lacked authority to consent to a search of 787
Clinton Springs Avenue and that the information provided to the magistrate in the
affidavit for the search warrant was insufficient. The evidence at the hearing consisted
of body-camera footage and testimony from the homeowner, Jones, Gaston, Officer
Bode, and Officer Wiegand. The trial court denied the motion to suppress. After a two-
day trial, the jury convicted Jones of all charges. The trial court imposed an aggregate
22-to-24-year-and-6-month sentence.
{¶6} On appeal, Jones raises four assignments of error concerning the
suppression of evidence, the sufficiency and manifest weight of the evidence, and the
constitutionality of his sentence.
II. Law and Analysis
{¶7} Jones maintains that he received unconstitutionally ineffective
assistance of counsel in violation of his Sixth Amendment rights. Jones argues that
counsel was ineffective for failing to challenge the evidence from the safe as a product
of coercion and a protective sweep in violation of the Fourth Amendment.
3
OHIO FIRST DISTRICT COURT OF APPEALS
Defendants Have a Constitutional Right to the Effective Assistance of Counsel
{¶8} The Sixth Amendment guarantees an accused person the right to
counsel, requiring the effective assistance of an attorney “who plays the role necessary
to ensure that the trial is fair.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). That is so because “it is through counsel that the accused
secures his other rights.” Kimmelman v. Morrison, 477 U.S. 365, 377, 106 S.Ct. 2574,
91 L.Ed.2d 305 (1986). But trial counsel is not per se ineffective for failing to file a
motion to suppress or omitting arguments in support of suppression. State v.
Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 94. Rather, to
succeed on a claim alleging ineffective assistance of counsel, Jones must show that his
counsel’s performance was deficient and that he suffered prejudice because of that
deficient performance. Strickland at 687.
{¶9} Legal representation is constitutionally deficient when it falls “below an
objective standard of reasonableness” according to “prevailing professional norms.”
Id. at 687-688. In other words, a “court must determine whether, in light of all the
circumstances, the identified acts or omissions were outside the wide range of
professional competent assistance.” Id. at 688. Counsel’s incompetence must
“undermine[] the proper functioning of the adversarial process” and cast doubt on the
notion that the trial court “produced a just result.” Id. at 686. When reviewing
counsel’s assistance, we “must indulge a strong presumption” that the act or omission
in question was sound trial strategy, and that all significant decisions were made “in
the exercise of reasonable professional judgement.” Id. at 687-688.
4
OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} When arguing that trial counsel was ineffective for failing to litigate a
suppression issue, a defendant must prove that the omitted challenge had arguable
merit. See State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 65;
see also State v. Payton, 119 Ohio App.3d 694, 704, 696 N.E.2d 240 (11th Dist.1997)
(“Where there exist reasonable grounds for filing a motion to suppress, counsel’s
failure to file the motion may constitute ineffective assistance and warrant reversal.”).
With that in mind, we begin with Jones’s arguments concerning the consent given to
police and the protective sweep.
Gaston’s Consent to Search Was Involuntary
{¶11} The Fourth Amendment to the United States Constitution protects
“[t]he right of people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures.” A warrantless search of a home is presumptively
unconstitutional unless an exception applies. See Payton v. New York, 445 U.S. 573,
586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Relevant here, a warrantless search of a
home may be constitutional when officers obtain consent to search the home from a
person with authority over the premises. State v. Roberts, 110 Ohio St.3d 71, 2006-
Ohio-3665, 850 N.E.2d 1168, ¶ 98, quoting Schneckloth v. Bustamonte, 412 U.S. 218,
249, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). To justify a search as consensual, the Fourth
Amendment requires that “consent was, in fact, freely and voluntarily given.” Bumper
v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Whether
consent was voluntary depends on the totality of the circumstances surrounding the
consent. State v. Sieng, 10th Dist. Franklin No. 18AP-39, 2018-Ohio-5103, ¶ 38, citing
Roberts at ¶ 99, and Schneckloth at 227.
5
OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} The body-camera footage in the record shows that officers opened the
front door of 787 Clinton Springs Avenue and announced their presence. Gaston
approached the door and stepped onto the porch, where he began speaking with
Sergeant Davis. As Gaston complied with Davis’s instructions to sit in a chair on the
porch, Davis stated, “We’ve got—we’re going to be doing a search warrant here.” After
Gaston repeatedly indicated that he was alone in the house, officers entered the home
and announced, “POLICE DEPARTMENT, SEARCH WARRANT.” The officers
conducted a sweep of the home. Two hours later, Gaston is seen on the porch in
handcuffs surrounded by officers, with several officers lingering inside of the home.
Gaston was handed a consent-to-search form and informed by police that “it will speed
up our process.” Moments later, officers can be heard discussing the safe.
{¶13} The totality of the circumstances show that the signed consent-to-
search form was not a product of consent, but an acquiescence to a claim of lawful
authority. “[T]here can be no consent” when the consent “had been given only after
the official conducting the search has asserted that he possesses a warrant.” Bumper
at 548. When officers identify a warrant as the basis of authority for searching a home,
they communicate “that the occupant has no right to resist the search.” Id. These
instances are “instinct with coercion” and “[w]here there is coercion[,] there cannot be
consent.” Id. at 549. Indeed, “[t]he result can be no different when it turns out that the
State does not even attempt to rely upon the validity of the warrant, or fails to show
that there was, in fact, any warrant at all.” Id. at 549-550.
{¶14} Gaston signed the consent-to-search form after he was made to believe
that the officers were at the home to execute a search warrant, and after a team of
officers swept through the house with Gaston on the porch in handcuffs. At that point,
6
OHIO FIRST DISTRICT COURT OF APPEALS
arguably, Gaston had no choice but to cooperate. Therefore, Jones’s trial counsel had
a reasonable basis to challenge Gaston’s consent as coerced and involuntary.
Protective Sweeps Must Be Justified
{¶15} As Jones points out, officers discovered the safe during a protective
sweep of the home. Under the Fourth Amendment, protective sweeps are
constitutional for the narrow purpose of ensuring the safety of officers who are lawfully
present in a home. Maryland v. Buie, 494 U.S. 325, 337, 110 S.Ct. 1093, 108 L.Ed.2d
276 (1990) (describing the “interest of the officers in taking steps to assure themselves
that the house in which a suspect is being, or has just been, arrested is not harboring
other persons who are dangerous and who could unexpectedly launch an attack.”).
This principle has been extended to situations where no arrest is made, provided that
the circumstances warrant a protective sweep and “the officers entered the residence
lawfully.” State v. Nelson, 1st Dist. Hamilton No. C-150650, 2016-Ohio-5344, ¶ 17; see
State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 189, citing
United States v. Taylor, 248 F.3d 506, 513-514 (6th Cir.2001).
{¶16} To justify a protective sweep, there must be “ ‘ “ ‘specific and articulable
facts which, taken together with the rational inferences from those facts, reasonably
warrant’ the officer in believing,” that the area swept harbor[s] an individual posing a
danger to the officer or others.’ ” Nelson at ¶ 17, quoting Buie at 337, quoting Michigan
v. Long, 463 U.S. 1032, 1049-1050, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), quoting
Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This requires
“ ‘more than ignorance or a constant assumption that more than one person is present
in a residence.’ ” State v. Byrd, 2d Dist. Montgomery No. 27340, 2017-Ohio-6903,
¶ 32, quoting United States v. Archibald, 589 F.3d 289, 300 (6th Cir.2009). For
7
OHIO FIRST DISTRICT COURT OF APPEALS
instance, the unconstitutional sweep in Byrd was “more consistent with conducting a
protective sweep as a matter of course rather than doing so due to any heightened
safety concerns derived from particular observations or information the officers
obtained after arriving” at the house. Id.{¶17} Based on the body-camera footage and officer testimony, there was a
reasonable basis to challenge the constitutionality of the protective sweep. Nothing in
the body-camera footage or officer testimony gives rise to a reasonable suspicion of
danger in the house warranting a sweep. There is no indication that officers heard any
sounds, or saw any movement, coming from inside of the house. In the footage, Gaston
repeatedly stated that he was the only person in the house. Bode testified at the
suppression hearing that he had no reason to believe there was anyone inside the
house other than Gaston. There is nothing to explain why the officers conducted the
protective sweep, other than a routine practice of conducting protective sweeps.
{¶18} Moreover, the officers finding Allwood on the second floor of the house
did not justify the sweep. A court determining whether a protective sweep is justified
must limit its examination to “the events which occurred leading up to [the sweep].”
See Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
Indeed, the touchstone of Fourth Amendment analysis is “whether these historical
facts, viewed from the standpoint of an objectively reasonable police officer, amount
to reasonable suspicion or to probable cause.” Id. In other words, anything found
during the sweep is irrelevant to whether the sweep was justified.
{¶19} Therefore, Jones’s trial counsel had a reasonable basis to challenge the
protective sweep as unconstitutional.
8
OHIO FIRST DISTRICT COURT OF APPEALS
Trial Counsel’s Assistance Must Be Effective
{¶20} Turning to deficiency, “[t]rial counsel has a duty to conduct a reasonable
investigation to determine possible defenses or to make a reasonable decision that a
particular investigation is unnecessary.” State v. Moon, 8th Dist. Cuyahoga No.
101972, 2015-Ohio-1550, ¶ 31. Yet, even if some evidence in the record supports
suppression, “ ‘counsel is still considered effective if counsel could reasonably have
decided that filing a motion to suppress would have been a futile act.’ ” Id. at ¶ 28,
quoting State v. Suarez, 12th Dist. Warren No. CA2014-02-035, 2015-Ohio-64, ¶ 13.
{¶21} The record indicates that trial counsel was aware that suppressing the
evidence recovered from the safe was critical, and we discern nothing to suggest that
raising these arguments was futile. Counsel either failed to investigate these issues or
disregarded the claims in spite of the clear application of North Carolina v. Bumper
and Maryland v. Buie to the facts of this case. Regardless, omitting these challenges
from the motion to suppress fell outside the scope of competent assistance. Absent
that deficient assistance, there is a reasonable probability that the outcome of the trial
would have been different. Officers relied on the information gathered during the
sweep to secure a search warrant. At trial, Davis and Bode testified about the recovery
of the safe, and both the drugs and lab reports were entered into evidence. Therefore,
we hold that Jones suffered prejudice from the deficient performance.
{¶22} The state maintains that we are ill-equipped, based on the record, to
review Jones’s ineffective-assistance-of-counsel claim on direct review. Specifically,
the state relies on State v. Gervin, 3d Dist. Marion No. 9-15-51, 2016-Ohio-5670, to
question the adequacy of the record. The record in Gervin was inadequate to
determine whether the police complied with Ohio’s knock-and-announce statute and
lawfully entered Gervin’s home. Id. at ¶ 19. That was so because the only evidence of
9
OHIO FIRST DISTRICT COURT OF APPEALS
the manner and mode of entry into the home was a testifying officer’s cursory account
of using a battering ram to enter the home. Id. at ¶ 21. But here, the record includes
the body-camera footage played at both the suppression hearing and the trial. The
circumstances surrounding Gaston’s consent and the protective sweep are preserved
in that footage. The record here is distinguishable from the record in Gervin, which
lacked evidence of what occurred as the officers entered the home. See id. at ¶ 22.
Inevitable-Discovery Exception
{¶23} The state contends that the discovery of the safe and its contents was
inevitable. Typically, the exclusionary rule “precludes the use in a criminal proceeding
of evidence obtained in violation of the Fourth Amendment, ‘to “compel respect for
the constitutional guaranty.” ’ ” State v. Banks-Harvey, 152 Ohio St.3d 368, 2018-
Ohio-201, 96 N.E.3d 262, ¶ 25, quoting Davis v. United States, 564 U.S. 229, 236, 131
S.Ct. 2419, 180 L.Ed.2d 285 (2011), quoting Elkins v. United States, 364 U.S. 206, 217,
80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). But one exception to the exclusionary rule
provides that “illegally obtained evidence may be admitted in a proceeding once the
state establishes that the evidence would inevitably have been discovered in the course
of a lawful investigation.” Id. at ¶ 27. Under the inevitable-discovery exception, the
state must show, by a preponderance of the evidence, a reasonable probability that the
evidence would have been discovered apart from the constitutional violation. Id.
{¶24} The state maintains that recovering the safe was inevitable because the
police would have procured a search warrant of the house based on the facts known to
them before the protective sweep. The state argues that the anonymous complaints,
police observations, arrest, and the items found on Jones provided the requisite
probable cause to secure a warrant before the sweep. While informant tips may
establish probable cause considering the totality of the circumstances, an anonymous
10
OHIO FIRST DISTRICT COURT OF APPEALS
informant is “comparatively unreliable” and requires independent corroboration.
State v. Campbell, 1st Dist. Hamilton No. C-140372, 2015-Ohio-1464, ¶ 14, quoting
Maumee v. Wiesner, 87 Ohio St.3d 295, 300, 720 N.E.2d 507 (1999), citing Alabama
v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Indeed, “[c]ourts
must be wary of anonymous tips.” State v. Smith, 163 Ohio App.3d 567, 2005-Ohio-
5204, 839 N.E.2d 451, ¶ 1 (1st Dist.). Despite weeks of surveillance, the record shows
that officers did not observe any drug-related activity at the house.
{¶25} More to the point, the state’s argument is too speculative. The Fourth
Amendment demands that inevitability must be couched in terms of a probability
rather than a possibility. State v. Taylor, 138 Ohio App.3d 139, 151, 740 N.E.2d 704(2d Dist.2000). The inevitable-discovery exception does not apply merely when
officers “could have obtained a warrant, intended to obtain a warrant, or later obtained
a warrant.” State v. Foster, 3d Dist. Allen No. 1-14-54, 2015-Ohio-3401, ¶ 15. Rather,
“investigative procedures independent of the illegal conduct that would have
ultimately led to the inevitable discovery of the evidence must be in place and
implemented prior to the discovery of the evidence by illegal means.” State v. Porter,
178 Ohio App.3d 304, 2008-Ohio-4627, 897 N.E.2d 1149, ¶ 43 (2d Dist.). The
inevitable-discovery exception “may not be used however, to rehabilitate evidence
seized without a warrant.” Foster at ¶ 9. When we review the record, there must be
some evidence “that would indicate that []steps were taken to obtain a warrant.” State
v. Hatcher, 11th Dist. Ashtabula No. 2002-A-0100, 2004-Ohio-2451, ¶ 23. In Hatcher,
the court rejected the application of the exception despite the arguable presence of
probable cause to obtain a search warrant “because there were no steps taken in an
attempt to do so.” Id. At the other end of the spectrum, the application of the
inevitable-discovery exception is clear when officers secured a search warrant for the
11
OHIO FIRST DISTRICT COURT OF APPEALS
defendant’s home before the constitutional violation. State v. Riffle, 8th Dist.
Cuyahoga No. 107352, 2019-Ohio-3271, ¶ 17 (“no question the marijuana located
inside and outside the home would have been located and seized pursuant to the
search warrant, regardless of Riffle’s comments including ‘there is weed
downstairs.’ ”).
{¶26} In its current form, the record is more consistent with Hatcher and lacks
any indication that the officers were securing a warrant. To hold otherwise “ ‘would
essentially eliminate the warrant requirement and encourage police to proceed
without a neutral and detached magistrate’s probable cause determination.’ ” State v.
Alihassan, 10th Dist. Franklin No. 11AP-578, 2012-Ohio-825, ¶ 30, quoting State v.
Coyle, 4th Dist. Ross No. 99 CA 2480, 2000 Ohio App. LEXIS 1079 (Mar. 15, 2000).
Application of the inevitable-discovery exception is improper in situations that
“encourage police to engage in their own Fourth Amendment speculation without a
prior probable cause determination by a court and foster a ‘search-first’ mentality that
disregards constitutional safeguards.” Id. at ¶ 30. Like most Ohio courts, we reject an
application of the exception that would swallow the rule and demote the Fourth
Amendment’s warrant requirement where “a court later determines that the police, in
fact, had probable cause to perform the warrantless search.” Id.1
{¶27} Therefore, we sustain Jones’s first assignment of error. Trial counsel
was constitutionally ineffective for failing to challenge both the protective sweep of the
home and the consent given to the officers to search the home. The ineffective
assistance of trial counsel deprived Jones of his Sixth Amendment right to counsel.
1But see State v. Farrey, 9th Dist. Summit No. 26703, 2013-Ohio-4263, ¶ 17 (applying inevitable-
discovery to money found on Farrey during a Terry search because officers had probable cause to
arrest Farrey and “would have discovered the cash during a search incident to arrest.”).
12
OHIO FIRST DISTRICT COURT OF APPEALS
{¶28} While we hold that Jones’s trial counsel was unconstitutionally
ineffective, we recognize that trial counsel’s ineffective assistance prevented the state
from fully developing the facts surrounding the protective sweep, the search, and
inevitable discovery. Nothing in this opinion prevents the parties from developing
these arguments on remand. Accordingly, we remand the case to the trial court for the
limited purpose of permitting Jones’s counsel to submit a new motion to suppress that
raises the constitutional issues omitted by his previous counsel, and for the trial court
to hold a new suppression hearing to determine whether the evidence from the safe
should be suppressed. At the hearing, the parties are entitled to raise arguments and
present evidence for or against the suppression of the evidence. The trial court must
analyze the suppression of the evidence in a manner consistent with this opinion.
{¶29} In his remaining assignments of error, Jones challenges the denial of
his motion to suppress, the sufficiency and manifest weight of the evidence produced
at trial, and the constitutionality of Ohio’s Reagan Tokes Law. We stay consideration
of the remainder of Jones’s assignments of error until the trial court determines
whether the evidence from the safe should be suppressed.
III. Conclusion
{¶30} We sustain Jones’s first assignment of error and order a limited remand
of this matter to the trial court for further proceedings to consider the evidence at the
suppression hearing and make a legal determination consistent with this opinion. We
stay our consideration of Jones’s remaining assignments of error.
Case remanded.
BERGERON, P.J., concurs.
WINKLER, J., dissents.
WINKLER, J., dissenting.
13
OHIO FIRST DISTRICT COURT OF APPEALS
{¶31} I respectfully dissent from the majority’s opinion holding that Jones was
denied the effective assistance of counsel. I would overrule Jones’s four assignments
of error, and I would affirm his convictions.
{¶32} The defendant bears the burden to show ineffective assistance of
counsel. State v. Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988); State
v. McCrary, 1st Dist. Hamilton No. C-080860, 2009-Ohio-4390, ¶ 12. Prejudice from
defective representation sufficient to justify reversal of a conviction exists only where
the result of the proceeding was unreliable or fundamentally unfair because of
counsel’s performance. Lockhart v. Fretwell, 506 U.S. 364, 369-370, 113 S.Ct. 838,
122 L.Ed.2d 180 (1993); State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965(1995); State v. Hackney, 1st Dist. Hamilton No. C-150375, 2016-Ohio-4609, ¶ 38. I
do not believe that his trial counsel’s alleged defective performance rendered the result
of the proceeding unreliable or fundamentally unfair.
{¶33} As a preliminary matter, a review of Jones’s trial testimony leads me to
question whether Jones had standing to contest the search of the safe. At the hearing
on the motion to suppress, trial counsel successfully limited the scope of Jones’s
testimony in order to establish standing to contest the protective sweep of the house
and discovery of the safe. Jones’s limited testimony established that his cousin’s father
owned the house, that he grew up there, and that he stayed there overnight on
occasion. He estimated that in April 2020, he stayed there three to four times. He
also stated that he was always welcome there. I do not believe that this testimony was
sufficient to establish standing, and the issue is further undermined by Jones’s trial
testimony that he had never lived in the house, that he had never spent more than one
night there, that he had no access to the locked third floor where the safe was found,
and that he knew nothing about the safe. See State v. Brown, 1st Dist. Hamilton No.
14
OHIO FIRST DISTRICT COURT OF APPEALS
C-120327, 2013-Ohio-2720, ¶ 11-14; State v. Draper, 6th Dist. Fulton No. F-04-026,
2005-Ohio-920, ¶ 9-16. “[A]n overnight guest may claim the protection of the Fourth
Amendment, but one who is merely present with the consent of the householder may
not.” Brown at ¶ 12, quoting Minnesota v. Carter, 525 U.S. 83, 90, 119 S.Ct. 469, 142
L.Ed.2d 373 (1998).
{¶34} Further, many of the issues Jones raises were not fully developed in the
trial court because he failed to raise them. The defendant must specifically raise the
grounds upon which the validity of the search or seizure is challenged to give the
prosecutor notice of the basis of the challenge. Xenia v. Wallace, 37 Ohio St.3d 216,
219, 524 N.E.2d 889 (1988); State v. Billings, 1st Dist. Hamilton Nos. C-200245 and
C-200246, 2021-Ohio-2194, ¶ 15-16. The prosecutor is not required to anticipate the
specific legal and factual grounds for a defendant’s challenge to a warrantless search
or seizure. The defendant must clarify the legal and factual grounds upon which the
defendant challenges the evidence so that the prosecutor may adequately prepare for
the suppression hearing. Xenia at 218. Failure of the defendant to adequately raise
the basis of his challenge constitutes a waiver of that issue on appeal that may only be
reversed upon a showing of plain error. Billings at ¶ 17; State v. Thomas, 1st Dist.
Hamilton No. C-120561, 2013-Ohio-5386, ¶ 33-35. The only issues raised in the
motion to suppress were Jones’s claims that Gaston did not have authority to consent
to the search because he was not the owner of the property and the validity of the
search warrant for the safe.
{¶35} Courts have held that the record at trial is generally inadequate to
determine the validity of a suppression argument on appeal. See State v. Gervin, 3d
Dist. Marion No. 9-15-51, 2016-Ohio-5670, ¶ 23; State v. Rivera, 12th Dist. Butler No.
15
OHIO FIRST DISTRICT COURT OF APPEALS
CA2011-10-194, 2012-Ohio-3755, ¶ 14; State v. Siders, 4th Dist. Gallia No. 07CA10,
2008-Ohio-2712, ¶ 11. But if the defendant can meet his or her burden to show
ineffective assistance of counsel through the trial testimony, the defendant can prevail
on a claim that defense counsel did not provide effective assistance by failing to raise
an issue in the trial court. See Rivera at ¶ 14; Siders at ¶ 11. Jones has not met that
burden.
{¶36} I agree with the majority’s conclusion that Gaston’s consent to the
search was involuntary because the police officers told him that they had a search
warrant before he consented to the search. See Bumper v. North Carolina, 391 U.S.
543, 550, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Nevertheless, despite our limited
record, considering the state was under no obligation to elicit testimony in support of
the protective sweep, I believe the protective sweep was justified. Even if it was not,
the safe would have inevitably been discovered. Consequently, the trial court properly
denied Jones’s motion to suppress, and his counsel was not ineffective for failing to
raise the issue.
{¶37} “A ‘protective sweep’ is a quick and limited search of premises,
conducted to protect the safety of police officers or others. It is narrowly confined to
a cursory visual inspection of those places in which a person may be hiding.”
Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). There
must be articulable facts, which, taken together with the reasonable inferences from
those facts, would warrant a reasonably prudent officer in believing that the area to be
swept harbors an individual posing a danger to those on the arrest scene. Id.{¶38} In this case, the police officers were investigating neighborhood
complaints that Jones was engaged in drug trafficking at 787 Clinton Springs Avenue.
They conducted surveillance for two weeks, and they saw activity indicative of drug
16
OHIO FIRST DISTRICT COURT OF APPEALS
trafficking. They knew that Jones had an open felony warrant, and they saw a hand-
to-hand transfer between the van in which Jones was a passenger and a parked car.
Jones was searched, and the officers found the working tools of a drug dealer, a digital
scale with cocaine residue, $1,000 cash, three cell phones, and a baggie containing a
powdery substance, which was later found not to be a drug. Jones denied any
connection to the house on Clinton Springs Avenue, though officers had seen him leave
the house and he had a key that fit into the lock.
{¶39} When investigating drug activity, police officers have a legitimate
concern for their own safety due to the “nexus between drugs and guns.” State v.
Thompson, 1st Dist. Hamilton No. C-050400, 2006-Ohio-4285, ¶ 11. “The nature of
narcotics trafficking today reasonably warrants the conclusion that a suspected dealer
may be armed and dangerous.” State v. McQuitty, 12th Dist. Warren No. CA2004-09-
113, 2005-Ohio-5905, ¶ 12, quoting State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-
6085, 817 N.E.2d 864, ¶ 12.
{¶40} Further, the risk of danger inherent in the confines of a home or
otherwise on an “adversary’s turf” is greater than in an on-the-street encounter.
Therefore, the officers may take reasonable steps to ensure their own safety. State v.
Brewster, 157 Ohio App.3d 342, 2004-Ohio-2722, 811 N.E.2d 162 (1st Dist.2004),
citing Buie, 494 U.S. at 333-334, 110 S.Ct. 1093, 108 L.Ed.2d 276. “An ambush in a
confined setting of unknown configuration is more to be feared than it is in open, more
familiar surroundings.” Buie at 333.
{¶41} The officers had probable cause for a warrant to search the residence at
787 Clinton Springs Avenue, and they would have obtained one had they not been
mistaken that Gaston’s consent was voluntary. They would have been justified in
17
OHIO FIRST DISTRICT COURT OF APPEALS
securing the premises until they obtained that warrant. Even though Gaston had
claimed that he was the only person present in the residence, the officers were justified
in doubting his credibility, and they did not have to risk their safety and the safety of
others, based on that claim. Gaston’s claim of being the only person at the house was
untrue because during the protective sweep, the officers found Allwood, who had open
warrants, hiding on the second floor. The officers had articulable facts, which, taken
together with the reasonable inferences from those facts, would warrant a reasonably
prudent officer in believing that the area to be swept harbored an individual posing a
danger to those at the scene. Therefore, the protective sweep was justified.
{¶42} The “ultimate touchstone of the Fourth Amendment is ‘reasonableness.’
Where concerns of officer safety are present, the United States Supreme Court has
measured reasonableness by balancing the need for the search against the invasion the
search entails.” State v. Nelson, 1st Dist. Hamilton No. C-150650, 2016-Ohio-5344, ¶
17, citing Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650(2006), and Buie at 332. The invasion of the protective sweep was minimal compared
to the need to protect officer safety, and the search was reasonable under the Fourth
Amendment. See Nelson at ¶ 17-18.
{¶43} Additionally, the protective sweep was properly limited in scope. It
consisted of a cursory inspection of the rooms in the house where an individual could
hide. When the officers discovered the safe on the third floor of the house, they asked
Gaston and Jones if they had a key, and both said that the safe was not theirs and they
did not have a key. The officers then prepared an affidavit for a search warrant and
did not open the safe until they had obtained that warrant. See Buie, 494 U.S. at 335-
356, 110 S.Ct. 1093, 108 L.Ed. 276; Brewster, 157 Ohio App.3d 342, 2004-Ohio-2722,
811 N.E.2d 162, at ¶ 30.
18
OHIO FIRST DISTRICT COURT OF APPEALS
{¶44} Further, admission of the evidence found during the search of the
residence can be justified under the inevitable-discovery exception to the warrant
requirement. Under that exception, illegally obtained evidence is admissible at trial if
it is established that the evidence would have ultimately or inevitably been discovered
during a lawful investigation. State v. Perkins, 18 Ohio St.3d 193, 480 N.E.2d 763(1985), syllabus; State v. Pippin, 1st Dist. Hamilton Nos. C-160380 and C-160381,
2017-Ohio-6970, ¶ 19. The state has the burden to show within a reasonable
probability that police officers would have discovered the evidence by lawful means.
Perkins at 196; Pippin at ¶ 19. The exception applies when evidence discovered during
an illegal search would have been discovered during a later legal search and the second
search inevitably would have occurred in the absence of the first. United States v.
Keszthelyi, 308 F.3d 557, 574 (6th Cir.2002).
{¶45} The rationale for the inevitable-discovery exception is that the
prosecution should not be placed in a worse position at trial because of some earlier
police misconduct when the evidence gained would ultimately have been found in the
absence of that misconduct. Nix v. Williams, 467 U.S. 431, 443-444, 104 S.Ct. 2501,
81 L.Ed.2d 377 (1984); Perkins at 195-196. “While the Exclusionary Rule is used to
deny the admission of evidence unlawfully gained, and thereby to put the state in the
same position it would have been absent evidence seized, the rule should not be used
to put the state in a worse position by refusing evidence that would have subsequently
been discovered by lawful means.” Perkins at 196.
{¶46} Even if the protective sweep was improper, the discovery of the safe was
inevitable given the facts and circumstances known to police before they entered the
residence. The police officers could have frozen the scene to prevent any destruction
or spoilage of evidence while they waited for a warrant to search the house. The facts
19
OHIO FIRST DISTRICT COURT OF APPEALS
known by the officers would have provided sufficient probable cause to allow the
officers to obtain a warrant.
{¶47} Under this assignment of error, Jones also argues that counsel was
ineffective for failing to argue that Gaston did not have the actual or apparent authority
to consent to the search of the third floor of the house. Gaston told the police officers
that although he was not the owner of the house, he was its sole resident. The lawful
tenant occupying the premises may consent to a search of the premises. State v. Hill,
1st Dist. Hamilton No. C-830716, 1984 Ohio App. LEXIS 10776, 11 (Sept. 26, 1984),
citing United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), and
State v. Carder, 9 Ohio St.2d 1, 222 N.E.2d 620 (1966). Thus, Gaston had authority
to consent to a search of the entire premises. Further, Jones denied that he lived on
the third floor and that the safe was his. Consequently, counsel’s failure to raise that
issue did not prejudice Jones.
{¶48} In sum, Jones has not demonstrated that but for counsel’s deficient
performance, the result of the proceeding would have been different or that the result
of the proceeding was unreliable or fundamentally unfair. Consequently, he failed to
meet his burden to show ineffective assistance of counsel, and I would overrule his
first assignment of error.
{¶49} In his second assignment of error, Jones contends that the trial court
erred in denying his motion to suppress. Because I would hold that the safe would have
been inevitably discovered, that the warrant was supported by probable cause, and
that the police officer’s mistaken statement that Gaston was the owner of the property
did not affect the validity of the warrant, I would overrule Jones’s second assignment
of error. See State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989); State v.
Martin, 1st Dist. Hamilton No. C-200067, 2021-Ohio-2599, ¶ 11; State v. Taylor, 174
20
OHIO FIRST DISTRICT COURT OF APPEALS
Ohio App.3d 477, 2007-Ohio-7066, 882 N.E.2d 945, ¶ 15-17 (1st Dist.); State v.
Jordan, 1st Dist. Hamilton No. C-060336, 2007-Ohio-3449, ¶ 9.
{¶50} In his third assignment of error, Jones contends that his convictions
were not supported by sufficient evidence. Jones’s arguments require his testimony
to be believed. But in deciding if the evidence was sufficient, we neither resolve
evidentiary conflicts nor assess the credibility of witnesses. Thomas, 1st Dist.
Hamilton No. C-120561, 2013-Ohio-5386, at ¶ 45. My review of the record shows that
a rationale trier of fact, after viewing the evidence in a light most favorable to the
prosecution, could have found that the state proved all the elements of the offenses of
which Jones was charged beyond a reasonable doubt. Therefore, I would hold that the
evidence was sufficient to support his convictions. See State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; State v. Hackney, 1st Dist.
Hamilton No. C-150375, 2016-Ohio-4609, ¶ 29.
{¶51} Jones also contends that his convictions were against the manifest
weight of the evidence. After reviewing the record, we cannot hold that the jury clearly
lost its way and created such a manifest miscarriage of justice that we must reverse
Jones’s convictions and order a new trial. Therefore, we cannot hold that they are
against the manifest weight of the evidence. See State v. Thompkins, 78 Ohio St.3d
380, 387, 678 N.E.2d 541 (1997); Thomas at ¶ 48. Again, Jones’s arguments require
that his testimony be believed, but matters as to the credibility of evidence are for the
trier of fact to decide. State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d
433, ¶ 116; Thomas at ¶ 48. Consequently, I would overrule Jones’s third assignment
of error.
{¶52} Finally, in his fourth assignment of error, Jones contends that the trial
court erred in sentencing him to an indefinite prison term under the Reagan Tokes
Law. In State v. Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-2962, appeal
21
OHIO FIRST DISTRICT COURT OF APPEALS
allowed 168 Ohio St.3d 1418, 2202-Ohio-3752, 196 N.E.3d 850, this court rejected the
same arguments Jones now raises and held the Reagan Tokes Law to be constitutional.
Consequently, I would overrule Jones’s fourth assignment of error.
{¶53} In sum, I see no merit in Jones’s arguments. I would overrule his four
assignments of error and affirm his convictions in all respects. Further, even though
I disagree with majority’s conclusion that trial counsel’s performance was
constitutionally deficient, the proper remedy for a constitutional violation is not a
remand to the trial court for further proceedings on a motion to suppress, but rather
vacating Jones’s convictions and ordering new trial. See State v. Velez, 9th Dist.
Lorain No. 13CA010413, 2014-Ohio-4328, ¶ 17; State v. Conkright, 6th Dist. Lucas No.
L-06-1107, 2007-Ohio-5315, ¶ 20.
Please note:
The court has recorded its entry on the date of the release of this opinion.
22