dissenting
I respectfully dissent since I would hold that Officer Hunt did not have probable cause to search Cancel. Although the trial court's decision was based on probable cause rather than the search warrant, I would also hold the scope of the warrant did not extend the search of Cancel since the majority seems to proceed on both grounds.
Officer Hunt's observations of Cancel did not warrant a prudent man in believing a felony was in progress. Hunt testified that he observed Cancel standing next to an automobile. Hunt did not observe anything exchanged between Cancel and the occupants of the automobile. Cancel was not someone whom Hunt had seen before at the location. Upon the arrival of the police, Cancel did not make any furtive glances or seek to flee the area. Rather, Cancel started to walk toward the building in which he resided, 5415 Bridge Avenue. Cancel's behavior did not give rise to a reasonable inference that he was a participant in a felony. Sibron v. New York (1968), 392 U.S. 40; State v. Hill (1977), 52 Ohio App. 393, N.E. 2d 775; cf. State v. Woods (Dec. 12, 1985), Cuyahoga App. No. 49892, unreported. I believe that Cancel's observed actions were subject to a variety of innocent interpretations. State v. Fahy (1988), 49 Ohio App. 3d 160. Therefore, based on the totality of the circumstance^ I would have found that Hunt did not have probable cause to believe Cancel was committing or had committed a drug offense.
The majority also appears to hold that the search warrant validated Hunt's search of Cancel. Although the search warrant is not contained in the record, testimony at the suppression hearing reveals that the search warrant authorized the search of 5415 Bridge Avenue, apartment 2, its curtilage; and persons present.1 The building at this address is a four-unit apartment structure. A man named Todd was also mentioned in the search warrant insofar as he occupied apartment 2. Cancel was a tenant in the building and occupied apartment 4.
The majority's reliance in State v. Schultz (1985), 23 Ohio App. 3d 130, 491 N.E.2d 735 is inapposite. While a warrant for the search of premises implicitly confers limited authority on police officers to conduct investigative detentions of individuals found on those premises who may be reasonably connected to that property, Hunt's full search of Cancel exceeded the limited detention contemplated in Schultz.
The chief issue to confront is whether Cancel was within the curtilage of apartment 2 at the time of the search. The question of what constitutes the curtilage of a particular apartment in a multi-unit apartment building for Fourth Amendment purposes has not been addressed squarely in Ohio.
The Supreme Judicial Court of Massachusetts stated:
"In a modern urban multi family apartment house, the area within the 'curtilage' is necessarily much more limited than in the case of a rural dwelling subject to one owner's control. [Citations omitted.] In an apartment house, a tenant's dwelling cannot reasonably be said to extend beyond his own apartment and perhaps *325any separate areas subject to his exclusive control." Commonwealth v. Thomas (1975), 358 Mass. 771, 774-5, 267 N.E.2d 489.
In People v. Becker (1975), 188 Col. 160, 533 P.2d 494, the Supreme Court of Colorado held that the common are in front of apartments contiguous to all apartments and not fenced in is not part of the curtilage of a particular apartment. In United States v. Miguel (C.A. 2, 1965), 340 F.2d 812, 814, cert. denied, 382 U.S. 859, the court held that the lobby of a multi-tenanted apartment house was not within the curtilage of defendant's apartment. The Supreme Court of the United States stated the following with respect to curtilage:
"[W]e believe that curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from the observation by people passing by." United States v. Dunn (1987), 480 U.S. 294, 301. Here, the State failed to show how the public area in front of the building fell within the curtilage of the particular apartment described in the warrant or how the tenant of apartment 2 exercised exclusive control over such area. There is no evidence that the area in front of 5415 Bridge Avenue was enclosed or one in which the tenant or owner had any expectation of privacy. The area in front of 5415 Bridge Avenue does not harbor "those intimate activities associated with domestic life and the privacies of the home." Id. at fn. 4. While the determination of what constitutes curtilage should be made on a case-by-case basis, I find that Cancel was not within the curtilage of apartment 2 when he was searched. Therefore, the scope of the warrant did not extend to Hunt's search of Cancel.
Accordingly, I would reverse the judgment of the trial court.
For purposes of my analysis, I assume that the search warrant authorized the search of persons present within the curtilage of apartment 2 instead of merely persons present within apartment 2.