[Cite as State v. Nickelson, 2017-Ohio-7503.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 16 BE 0039
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
SHAROD DESHAWN NICKELSON, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Belmont County, Ohio
Case No. 15 CR 237
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: No Brief Filed
For Defendant-Appellant: Atty. Dennis W. McNamara
88 East Broad Street - Suite 1350
Columbus, Ohio 43215
JUDGES:
Hon. Carol Ann Robb
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: August 30, 2017
[Cite as State v. Nickelson, 2017-Ohio-7503.]
ROBB, P.J.
{¶1} Defendant-Appellant Sharod Deshawn Nickelson appeals the decision
of the Belmont County Common Pleas Court overruling his suppression motion.
Appellant contends the warrantless entry into his hotel room in order to evict him was
unlawful. He also argues the independent source rule did not justify the subsequent
search warrant, claiming the warrantless search prompted the search warrant. If
both of these arguments are accepted, then he concludes the fruit of the poisonous
tree doctrine requires the suppression of evidence discovered upon execution of the
second search warrant, which was obtained based on evidence found during the first
search. We conclude the warrantless entry was valid and the independent source
rule validated the subsequent search conducted via a warrant in any event. For the
following reasons, the trial court’s judgment is affirmed.
STATEMENT OF THE CASE
{¶2} Appellant rented a room at Comfort Inn in St. Clairsville. On October
14, 2015, hotel staff made various calls to law enforcement to report unusual activity;
numerous cars coming in and out of the parking lot since Appellant’s occupancy.
They observed suspected drug trafficking from Appellant’s room to cars in the
parking lot of the hotel. (Tr. 51-52, 54; 2d Tr. 30, 36, 47, 52). For instance, Detective
Starkey of the Martins Ferry Police Department received a call from the manager of
the hotel in the afternoon. He advised her to record license plate numbers, watch the
situation, and report whether the increased traffic in the parking lot continued. (Tr.
50-52). A few hours later, a hotel employee called the detective to report the traffic
had increased while she watched the situation from surveillance video. (Tr. 53-54).
The detective was unable to immediately take action, but he consulted with the
assistant prosecutor and began preparing an affidavit for a search warrant. (Tr. 55,
70-71; 2d Tr. 54).
{¶3} The hotel staff did not ask Appellant to leave but eventually called 911.
(Tr. 13, 58; 2d Tr. 34-35). They wanted the police to escort Appellant off the
premises. (Tr. 48-49). Deputy Carpenter and Deputy Schwarck from the Belmont
County Sheriff’s Department responded to the call in separate vehicles. At the hotel,
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two hotel employees explained to the deputies what they observed, including two
people repeatedly walking from Appellant’s room to different vehicles that pulled into
the parking lot. (Tr. 14, 94). The employees showed the deputies notes they had
taken and video footage. (Tr. 14, 102).
{¶4} The hotel staff informed the deputies they wanted Appellant evicted and
removed from the premises. (Tr. 16, 95, 102). Due to the suspected drug trafficking,
the employees were fearful of approaching Appellant. (Tr. 16). The deputies asked
for an employee to accompany them to the room, but both employees adamantly
refused to do so and referred to a recent robbery at a nearby hotel. (Tr. 16-17, 89).
The hotel employees gave the deputies a keycard to open Appellant’s hotel room.
(Tr. 17, 102).
{¶5} The deputies proceeded to Appellant’s third floor room. Deputy
Carpenter knocked multiple times, announcing he was with the sheriff’s department
and was there for the hotel staff. (Tr. 18-19). Deputy Schwarck testified they made it
clear they were present to remove Appellant from the room at the request of hotel
management. (Tr. 106). Deputy Carpenter noted his recent responses to overdose
cases and his concern this could be such a case due to Appellant’s failure to respond
to the knocking. (Tr. 19).
{¶6} Deputy Carpenter used the room key and attempted to push the door
open. The interior latch stopped the door from opening more than a few inches. (Tr.
20). Appellant voiced a sound, and the deputy asked him to open the door as they
needed to talk to him. (Tr. 20). Appellant asked them to wait; the deputy said “okay”
and reiterated why he was there. (Tr. 20). Appellant then noted he would not be
able to release the interior latch with the door pressing on the latch. After the door
was closed for a period, Deputy Carpenter knocked again.
{¶7} When there was no response, Deputy Carpenter pushed open the door
but the interior latch was still in place. Appellant had moved to a place in the room
where he could be seen through the crack. Deputy Carpenter observed Appellant
holding a bag of pills which was illuminated by the light of Appellant’s phone. (Tr.
21). The bag was actually the (tied-off) corner portion of a larger plastic bag (to form
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a “V” shape), which is commonly utilized to store narcotics. (Tr. 103-104). The
deputy ordered Appellant to open the door, and Appellant asked him to “wait a
minute” but did not then comply. Deputy Carpenter forced open the door with his
shoulder. (Tr. 22-23). Appellant was still holding the bag of pills, which turned out to
be a schedule II controlled substance containing oxycodone. (Tr. 22, 43). Appellant
was arrested at approximately 9:10 p.m.
{¶8} When Detective Starkey was advised of Appellant’s arrest, he
consulted with the assistant prosecutor who advised him to submit his affidavit for the
warrant without adding any new details. (Tr. 70-71). The detective’s affidavit used to
support the search warrant made reference only to what he was told by the hotel
employees when they called him. (Tr. 64; 2d Tr. 63-64). The search warrant for
Appellant’s room at Comfort Inn was issued by a judge at 11:17 p.m. Among items
discovered in Appellant’s room at Comfort Inn were: two keycards for the room at
Comfort Inn; two keycards for a room at another hotel; and $9,181. (Tr. 65). Due to
the presence of room keys for another hotel, the police learned Appellant had
simultaneously rented a room at the nearby Days Inn. (Tr. 66). The detective then
obtained a search warrant for the room at Days Inn where cocaine was discovered.
{¶9} Appellant was indicted on two counts drug trafficking. Count one
involved the cocaine (more than 100 grams) found in Appellant’s hotel room at Days
Inn. Count two involved the oxycodone pills (more than five times the bulk amount)
Appellant was holding when police entered his hotel room at Comfort Inn. Appellant
filed a motion to suppress, and a suppression hearing was conducted.
{¶10} On June 2, 2016, the trial court overruled the suppression motion. In
pertinent part, the court ruled the hotel staff asked the officers to evict Appellant as
they were too fearful to do so and a hotel guest loses his expectation of privacy upon
eviction. In the alternative, the court found the independent source rule would
validate the discovery of the evidence in the room at Comfort Inn as the first search
warrant was based on evidence the detective-affiant learned from hotel employees
prior to and independent of the warrantless entry by deputies.
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{¶11} Subsequently, the trial court permitted Appellant to present additional
evidence at a second suppression hearing. The original purpose of the hearing was
to discuss an issue with video footage from the third floor hallway which was not
preserved when the hotel provided video footage to law enforcement. At the hearing,
the court permitted Appellant to delve into the prior issues as well. In a June 17,
2016 judgment entry, the court maintained its prior decision overruling the
suppression motion. Appellant pled no contest to the charges and was thereafter
sentenced.
{¶12} Appellant filed a timely notice of appeal upon the trial court’s issuance
of the June 24, 2016 sentencing entry. Appellant’s brief was filed in December 2016.
He raises one assignment of error addressing the suppression decision, which he
divides into three parts: (1) whether the warrantless entry was lawful; (2) if not,
whether the first search warrant satisfied the independent source rule; and (3) if both
of these questions are answered in the negative and the evidence discovered in
those searches is suppressed, the evidence discovered during the execution of the
second search warrant must be suppressed as well. The state moved for an
extension of time to file a brief, and the motion was granted, but the state did not then
submit a brief.
ASSIGNMENT OF ERROR: SUPPRESSION
{¶13} Appellant’s assignment of error provides:
“The Trial Court Erred When It Overruled Appellant’s Motion to Suppress.”
{¶14} A trial court's decision to deny a motion to suppress involves a mixed
question of law and fact: legal questions are reviewed de novo, but factual issues
are rarely disturbed as the trial court is the fact-finder at the suppression hearing and
occupies the best position to evaluate witness credibility. State v. Roberts, 110 Ohio
St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. In other words, an appellate
court must accept the trial court's findings of fact if they are supported by competent,
credible evidence; upon accepting the facts as true, the appellate court independently
determines, without deferring to the trial court’s conclusion, whether the facts satisfy
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the applicable legal standard. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-
5372, 797 N.E.2d 71, ¶ 8.
{¶15} The Fourth Amendment to the United States Constitution protects
against unreasonable searches and seizures and mandates the specification of
probable cause by oath or affirmation. Ohio’s Constitution at Section 14 of Article I
provides likewise. Evidence obtained in violation of these provisions is subject to the
exclusionary rule. Mapp v. Ohio, 367 U.S. 643, 649, 81 S.Ct. 1684, 6 L.Ed.2d 1081
(1961) (applicable to the states via the Fourteenth Amendment). This general rule is
subject only to certain “specifically established and well delineated exceptions.” City
of Xenia v. Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988).
{¶16} First, Appellant disputes the legality of the initial entry into his hotel
room by officers who claimed to be evicting him on behalf of the hotel. He notes he
did not check out of the room and did not consent to the entry or search. He points
out a hotel has no authority to consent to search an occupied room. A hotel guest’s
room is subject to Fourth Amendment protections against unreasonable searches
and seizures as long as there remains a reasonable expectation of privacy. Stoner v.
California, 376 U.S. 483, 490, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). See also Hoffa
v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966), citing
United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951). “That
protection would disappear if it were left to depend upon the unfettered discretion of
an employee of the hotel” to provide consent to search the room. Stoner, 376 U.S. at
490. “The law does not prohibit every entry, without a warrant, into a hotel room.
Circumstances might make exceptions and certainly implied or express permission is
given to such persons as maids, janitors or repairmen in the performance of their
duties.” Jeffers, 342 U.S. at 51.
{¶17} In a Second District case, officers who were dispatched to a hotel after
a report of possible drug activity agreed to accompany the manager while he
informed the guests they were being evicted. State v. Fleming, 2d Dist. No.
2003CA71, 2004-Ohio-5278, ¶ 2. The officers stayed to the side of the door while
the manager knocked and announced the guests were to vacate the room. In that
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case, the door was opened by a guest. When the manager told the defendant to
vacate the room, the defendant sat down and said he did nothing wrong. The
manager stepped into the room followed by the officers who said the guests would be
arrested for trespassing if they did not leave. As drugs and paraphernalia were
observed in the room, the three room occupants, including the defendant, were
arrested. Id. at ¶ 3-4. More drugs were found while police packed the room after the
eviction. Id. at ¶ 4. The Second District concluded the manager’s unheeded
requests to leave served as an eviction, meaning the defendant lacked permission to
be in the hotel room and no longer had a constitutional expectation of privacy. Id. at
¶ 12.
{¶18} Appellant acknowledges a hotel employee can consent to law
enforcement’s entry into a hotel room if the guest has been evicted. See id. See
also State v. Wright, 8th Dist. No. 99531, 2013-Ohio-4473, ¶ 9 (“A hotel guest may
also lose his reasonable expectation of privacy in a hotel room when he is evicted
from the room”), citing United States v. Spicer, S.D. Ohio No. 7-CR-244 (Apr. 16,
2012). Pursuant to these cases, “termination of a hotel tenant's occupancy rights for
unauthorized activity is proper and hotel management can terminate a guest's
occupancy rights by taking affirmative steps to repossess the room.” Wright, 8th Dist.
No. 99531 at ¶ 9, quoting Spicer, S.D. Ohio No. 7-CR-244.
{¶19} These courts framed the issue as whether the hotel took “any action to
divest the hotel guest of his or her privacy interest in the room” and whether the
officers knew the hotel evicted the guest. See id. Appellant relies on the statement:
“Officers, however, cannot reasonably rely on a hotel employee's consent in entering
the room without actual or implied knowledge that the guest had been evicted from
the hotel room.” Wright, 8th Dist. No. 99531 at ¶ 9, citing United States v. Bass, 41
Fed. Appx. 735 (6th Cir.2002). The Eighth District concluded:
Without any affirmative act on the part of the hotel staff to divest Wright
of his status as an occupant of the hotel room, Wright's privacy interest
in his hotel room protected him against the warrantless search of his
hotel room by the police officers. Further, without actual or implied
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knowledge that hotel staff had evicted Wright from the room; the police
could not reasonably rely on the hotel staff's consent in entering
Wright's hotel room.
Wright, 8th Dist. No. 99531 at ¶ 12 (where the guest was arrested after damaging the
common area of the hotel while on drugs). In Wright, the trial court suppressed the
evidence, and the appellate court affirmed based upon facts showing there were no
affirmative acts by the hotel to evict and there was no knowledge by the police of any
eviction. See id. at ¶ 13.
{¶20} In Bass, the Sixth Circuit concluded: “Although the hotel manager
testified that he personally considered Bass evicted once he had been arrested, the
manager's personal beliefs have no legal import.” Bass, 41 Fed. Appx. at 737-738
(noting the manager informed no one the defendant had been evicted). The court
said the prosecution “presented no evidence that the police officers believed Bass to
have been evicted. The hotel manager had not told the police that he had evicted
Bass. Without knowledge, actual or implied, that Bass had been evicted from the
hotel, the police officers could not reasonably rely on the hotel manager's consent in
entering Bass's hotel room.” Id. at 738.1
{¶21} Appellant contends the hotel failed to take affirmative steps to
effectuate his eviction. He states the deputies knew he had not yet been evicted
because the hotel staff was requesting the deputies to assume the hotel’s role in the
desired eviction. Appellant believes cases involving police assisting a hotel
employee are distinct from this case where the hotel employee was afraid to
participate in the eviction and asked the police officers to evict the guest for the hotel.
Appellant does not argue the hotel lacked good reason to evict him and seemingly
acknowledges the hotel staff could have properly evicted him by taking affirmative
1 The Bass court distinguished its prior Allen case. In the Allen case: the motel manager went to the
room after the guest failed to pay for the upcoming night; the manager unlocked the room and looked
around after no one answered the door; upon viewing drugs in the bathroom, the manager locked the
guest out of his room; and the manager then showed police to view the contents of the room. See
United States v. Allen, 106 F.3d 695 (6th Cir.1997). The Sixth Circuit found “the motel manager
divested Allen of his status as an occupant of the room, and concomitantly terminated his privacy
interest in its contents.” Id. at 699.
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actions to repossess the room, including unlocking his door. The hotel staff asked for
assistance with the eviction, but the employees refused to accompany the officers to
the room and instead provided the room key to assist the officers in the eviction
process. In effectuating the eviction, the officers knocked and announced they were
there for the hotel staff. However, Appellant would not answer the door or respond.
{¶22} This court concludes the officer’s use of the room key to effectuate the
eviction on behalf of the hotel was permissible as Appellant would not respond to the
knocking and announcing. Upon partially opening the door, a bag of pills was seen in
plain view in Appellant’s hand (after they received evidence of drug trafficking being
conducted out of this room). The interior door latch was then forced open by the
police to arrest Appellant. The refusal of the hotel employees to accompany the
officers on the eviction does not invalidate the officers’ act of opening the door upon
Appellant’s refusal to acknowledge the knocking and announcement. The affirmative
actions of the hotel staff involved: calling police and demanding assistance in
evicting a guest; explaining and showing the evidence of drug trafficking to police,
which they watched over the course of the day; and providing police with the room
key with instructions to remove the guest from the premises. The officers had actual
knowledge of the hotel’s desire to evict the guest due to repeated drug trafficking.
Construing the facts in the light most favorable to the trial court’s interpretation, the
officer was justified in using the room key under the circumstances existing in this
case which involved the officer participating in the eviction on the request of the hotel.
{¶23} We recognize the United States Court of Appeals for the Ninth Circuit
has stated whether a hotel guest retains a reasonable expectation of privacy in his
hotel room depends on whether the hotel justifiably terminated the guest’s control of
the room “through private acts of dominion.” United States v. Cunag, 386 F.3d 888,
895 (9th Cir.2004), quoting United States v. Bautista, 362 F.3d 584, 590 (9th
Cir.2004). The Ninth Circuit described the affirmative actions required to repossess
as “private acts of dominion.” The private acts of dominion here were the demands
made upon law enforcement to evict the guest and the foisting of the room key on
officers while employees adamantly refusing to accompany them out of fear.
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Appellant cites no requirement the guest must have knowledge of the eviction prior to
a police search. In fact, the eviction in some cases occurs when the hotel enters and
locks out the guest when he is absent from the room.
{¶24} The Ninth Circuit pointed out: “The manager did not ask the police to
evict [the guest] and the police did not suggest doing so.” See United States v.
Young, 573 F.3d 711, 716 (9th Cir.2009), quoting Bautista, 362 F.3d at 590. The
Court further stated: “Until [the hotel] made that determination and asked the police
to evict Bautista, he was still a lawful occupant who retained a legitimate expectation
of privacy in the room.” Bautista, 362 F.3d at 590 (where the hotel merely asked
police to investigate). In accordance, the Ninth Circuit has indicated such facts
(asking police to evict for the hotel) would constitute “private acts of dominion” as
required for the affirmative action involved in the eviction of the guest. See, e.g., id.;
Young, 573 F.3d at 716. In accordance, Appellant’s first argument, dealing with the
warrantless entry, is overruled.
{¶25} Appellant’s second argument is presented in the alternative to his first
argument, and Appellant’s third argument (on the second search warrant) requires
both his first and second arguments to succeed on appeal. Although this court found
the warrantless entry was valid to effectuate the requested eviction, the trial court
made alternative holdings, and we continue to address the alternative holding.
{¶26} Appellant’s second argument deals with the trial court’s alternative
holding wherein the court concluded the independent source rule would validate
discovery of the evidence in the room at Comfort Inn as the search warrant executed
for the hotel room after the warrantless entry was based upon facts unrelated to the
onsite deputies’ actions or observations. Appellant argues the independent source
rule is unavailable as the evidence discovered in the warrantless entry was the
“impetus” for the search warrant.
{¶27} The exclusionary rule requires suppression of evidence obtained as a
result of an unlawful search and derivative evidence that is the product of the primary
evidence or is otherwise acquired as an indirect result of the unlawful search, unless
the connection with the unlawful search is so attenuated that the taint is dissipated.
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Murray v. United States, 487 U.S. 533, 536-37, 108 S.Ct. 2529, 101 L.Ed.2d 472
(1988). The question is whether the taint is sufficiently dissipated or whether the
evidence is the fruit of the poisonous tree. Segura v. United States, 468 U.S. 796,
804-805, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).
{¶28} The exclusionary rule has no application if the government discovered
the evidence from an independent source. Id. at 805. The independent source rule,
which permits courts to admit evidence obtained in an unlawful search if officers
independently acquired it from a separate, independent source. Id. See also State v.
Carter, 69 Ohio St.3d 57, 67, 630 N.E.2d 355 (1994) (“The exclusionary rule does not
apply, however, if the connection between the illegal police conduct and the
discovery and seizure of the evidence is so attenuated as to dissipate the taint, as
where the police have an independent source for discovery of the evidence.”). The
inevitable discovery doctrine can be a subcategory of the independent source
doctrine. Murray, 487 U.S. at 538-539.
{¶29} In Segura, law enforcement officers arrested a man in the common
area of an apartment building but then went upstairs and waited in his apartment for
the search warrant, which was in the process of being procured and was awaiting
presentation to a magistrate. The Court concluded the evidence found upon
execution of the search warrant the next day was the product of an independent
source. Id. at 813-814. The Segura Court rejected the dissent’s speculation that the
defendant’s family could have removed the evidence but for the illegal entry and the
conclusion that the illegal entry was the reason the evidence was still there waiting to
be found upon execution of the search warrant. Id. at 815-816.
{¶30} Subsequently, the Court explained the “classic” independent source
situation occurs when information received through an illegal source is considered
“cleanly obtained” if it is also obtained via an independent source. Murray, 487 U.S.
at 538-539. Under the independent source doctrine, the re-seizure of evidence
already seized and the re-observation of information already noticed is permissible as
the underlying policy is the government should not be placed in a worse position than
it would otherwise have occupied. Id. at 542. The test is whether the search
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pursuant to warrant was in fact a genuinely independent source of the evidence at
issue, which requires the state to show: (1) the decision to seek the warrant was not
prompted by what was observed during the initial entry; and (2) the information
obtained during the initial entry was not presented to support the issuance of the
search warrant. Id. at 542. See also Carter, 69 Ohio St.3d at 68.
{¶31} As to the second element, the detective’s affidavit in support of the
search warrant for Appellant’s room at Comfort Inn contained no facts related to the
deputies’ actions. He utilized only those facts he learned from the hotel employees
during the phone calls they placed to him earlier in the day. No fruits of the
warrantless entry were submitted in support of the search warrant. Appellant does
not contest this element of the test. Appellant contests only the first element,
contending it was the deputies’ discovery during the warrantless entry (of pills for
instance) that prompted the detective to apply for a search warrant for the room.
{¶32} As aforementioned, the detective started drafting his affidavit for a
search warrant prior to the hotel staff providing the deputies with the room key in
order to evict Appellant. As the detective was busy with other tasks, he did not
present the application for the search warrant to a judge until two hours after the
eviction and warrantless entry. The detective spoke to the assistant prosecutor about
the warrant both before and after the deputies’ entry. It was within the province of the
trial court to believe the detective was pursuing an alternative line of investigation
prior to the deputies’ entry into the room and to believe his decision to seek a warrant
was prompted by the multiple phone calls from the hotel and the explanations
provided to him by hotel employees rather than by the deputies’ subsequent entry at
the hotel’s behest.
{¶33} Accordingly, Appellant’s alternative argument is overruled, and the trial
court’s alternative holding is upheld. Appellant concedes his third argument
regarding the second search warrant would fail if his arguments regarding the
warrantless entry and the first search warrant fail. That is, the search warrant for the
room at Days Inn (where cocaine was discovered) was based on evidence obtained
from the search of the room at Comfort Inn. As the warrantless entry was valid
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and/or the search warrant for the room at Comfort Inn was derived from an
independent source, the evidence is not the fruit of the poisonous tree and may be
utilized in obtaining the second search warrant.
{¶34} For all of the foregoing reasons, the trial court’s suppression decision is
affirmed.
Waite, J., concurs.
DeGenaro, J., concurs.