I respectfully dissent. The majority opinion affirming the suppression of evidence ignores well-settled principles governing the validity of third-party consent searches and is not supported by the record. The case should be remanded for trial since defendant, McMillan, failed to demonstrate the search conducted with the independent consent of Blackman violated his Fourth Amendment rights.
As noted by the majority, this court affirmed defendant's convictions for receiving stolen property, carrying a concealed weapon and having a weapon while under disability stemming from a traffic stop in the case sub judice since the record demonstrated defendant was lawfully stopped, validly arrested and no violation of defendant's Fourth Amendment rights.State v. McMillan (Sept. 16, 1993), Cuyahoga App. No. 62795, unreported, 1993 WL 372275. The appeal sub judice stems from the trial court's suppression of evidence subsequently obtained from a nearby apartment with the independent consent of defendant's girlfriend Blackman.
It is well established that a warrantless search of a shared apartment conducted with the voluntary consent of a co-resident does not violate the Fourth Amendment rights of the nonconsenting resident. United States v. Matlock (1974),415 U.S. 164, 165-166, 94 S.Ct. 988, 990-991, 39 L.Ed.2d 242,246-247; State v. Sneed (1992), 63 Ohio St.3d 3, 6-7,584 N.E.2d 1160, 1164-1165; State v. Greer (1988), 39 Ohio St.3d 236, 240,530 N.E.2d 382, 390, certiorari denied (1988), 490 U.S. 1028,109 S.Ct. 1766, 104 L.Ed.2d 201. The standard for determining the validity of a consent to search under the Fourth Amendment is whether the consent was voluntarily made under the totality of the circumstances. United States v. Watson (1976), 423 U.S. 411,96 S.Ct. 820, 46 L.Ed.2d 598; State v. Barnes (1986), 25 Ohio St.3d 203,208-209, 25 OBR 266, 270-271, 495 N.E.2d 922,926-927, certiorari denied (1986), 480 U.S. 926, 107 S.Ct. 1388,94 L.Ed.2d 701; State v. Childress (1983), 4 Ohio St.3d 217, 4 OBR 534, 448 N.E.2d 155, certiorari denied (1983), 464 U.S. 853,104 S.Ct. 167, 78 L.Ed.2d 152.
The trial court's findings in the case sub judice do not state that Blackman's written consent to search made while at the apartment was in fact involuntary and the record does not support such conclusion. Blackman, who had completed *Page 8 two and one-half years of college education, repeatedly testified at the suppression hearing that the police did not use "coercion" to obtain her consent. She stated she was fully advised of her Miranda rights and right to refuse consent to the search and read the written consent to search form in her apartment prior to initialling and executing the document without threats or inducements of any kind. The consent form provided as follows:
"I, Tonya Blackman, agree to allow a consent search of my apartment, including all rooms located at 6805 Mayfield Road, Apartment 1107, by law enforcement officers of the Mayfield Heights Police Department for evidence, contraband, and instrumentalities of crimes. I waive the rights listed and initialled below:
"I have the right to refuse this search.
"I have the right to consult with my own lawyer prior to and during the search.
"I have the right to withdraw the consent for this search at any time and to limit the scope of this search.
"I am under no obligation nor pressure to allow this search.
"I also understand and initial the following information: Any evidence, contraband or instrumentalities of crime seized can be used to prosecute me as a criminal.
"I am the owner or person in charge of the item or premises to be searched.
"The police do not provide free lawyers for consent searches."
Blackman stated she initialled and executed the form after being transported to her apartment by the police and conducting several telephone calls. Blackman expressly reaffirmed the voluntariness of her consent in a written affidavit made while under oath when represented by counsel prior to the suppression hearing.
The trial court erroneously granted defendant's motion to suppress, without making any finding that Blackman's consent was actually involuntary, on the grounds that coercive circumstances were present when she signed the consent form, viz.: (1) she was in police custody and (2) was not represented by counsel. However, it is well established that the fact consent to search was made while in custody is insufficient by itself to demonstrate coercion as a matter of law. United States v.Watson, supra, 423 U.S. 411, at 424, 96 S.Ct. 820, at 828,46 L.Ed.2d 598, at 609 (consent by defendant); see, also, Frazier v.Cupp (1969), 394 U.S. 731, 740, 89 S.Ct. 1420, 1425,22 L.Ed.2d 684, 693-694 (consent by third-party). Moreover, even when raised by defendant to challenge his own personal consent rather than independent third-party consent to search, the combination of these two circumstances is insufficient to invalidate consent as a matter of law. *Page 9 State v. Childress, supra; State v. Rutter (1990), 68 Ohio App.3d 638, 589 N.E.2d 421.
The majority opinion ignores this authority, stating it "need not reach the exact issue of whether the consent was voluntary," by contending Blackman's consent was the invalid product of an "illegal custodial detention." (Majority Opinion at p. 5.) However, the majority's reliance on Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, which involved the suppression of evidence resulting from an unlawful arrest, is misplaced since the trial court in the case sub judice expressly declined to determine the propriety of Blackman's arrest prior to her execution of the consent. Defendant clearly lacks standing to raise such an issue and to the extent the majority relies on such contention, the supporting factual determination should have been made by the trial court rather than for the first time on appeal. United States v. Matlock,supra; Morales v. New York (1969), 396 U.S. 102, 90 S.Ct. 291,24 L.Ed.2d 299. Based on the record and trial court findings in the case sub judice, neither the fact of Blackman's detention nor the absence of counsel violated defendant's Fourth Amendment rights to warrant suppression of the evidence. See State v.Childress, supra; State v. Rutter, supra.
Even assuming the invalidity of Blackman's arrest, the record demonstrates contrary to the majority's argument that her subsequent consent to search was an independent act of free will and not the invalid result from the "illegal custodial detention" to warrant suppression of the evidence. See UnitedStates v. Wellins (C.A.9, 1981), 654 F.2d 550. Blackman stated her rights were fully explained to her and she did not execute the document at her apartment until after arranging for counsel during a telephone conversation with a friend. Blackman reaffirmed the voluntariness of her consent under oath while represented by counsel. Finally, to the extent that Blackman's consent to search resulted from an "illegal custodial detention" as the majority contends, the trial court's suppression of the evidence against defendant should nevertheless be reversed since defendant failed to establish a violation of his Fourth Amendment rights. People v. Henley (1981), 53 N.Y.2d 403,442 N.Y.S.2d 428, 425 N.E.2d 816.
Since the majority fails to adequately address these issues, I respectfully dissent. *Page 10