State v. Barnes

[Cite as State v. Barnes, 2017-Ohio-7284.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 9-16-58

v.

DEMARIO BARNES, OPINION

DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court
Trial Court No. 15-CR-0415

Judgment Affirmed

Date of Decision: August 21, 2017

APPEARANCES:

J.C. Ratliff and Jeff Ratliff for Appellant

Kevin P. Collins for Appellee
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PRESTON, P.J.

{¶1} Defendant-appellant, Demario Barnes (“Barnes”), appeals the

November 17, 2016, judgment entry of sentence of the Marion County Court of

Common Pleas. For the reasons that follow, we affirm.

{¶2} This case stems from an arrest warrant served on Barnes on September

9, 2015. On that date, several law enforcement officials traveled to Barnes’s

residence on Executive Drive in Marion, Ohio to arrest him for trafficking in drugs.

Barnes was arrested without incident. He then requested to use the bathroom and

entered his residence with law enforcement in order to do so before being

transported to jail. An officer who remained at the scene entered the home without

permission and without a warrant, and he spoke to Danielle Cutarelli (“Cutarelli”),

who lived with Barnes, about Barnes’s arrest and about the drugs that were in plain

view in the apartment. Cutarelli then signed a document indicating that she

consented to a search of the residence. The search that followed revealed drugs and

weapons.

{¶3} On September 24, 2015, the Marion County Grand Jury indicted Barnes

on one count of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1),

(C)(1), a felony of the fourth degree. (Doc. No. 1). On September 28, 2015, Barnes

appeared for arraignment and pled not guilty to the count in the indictment. (Doc.

No. 6). On February 11, 2016, the State filed a superseding joint indictment

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charging Barnes with: Count One of aggravated trafficking in drugs in violation of

R.C. 2925.03(A)(1), (C)(1), a felony of the fourth degree; Count Two of possession

of heroin in violation of R.C. 2925.11(A), (C)(6), a felony of the first degree; Count

Three of possession of marijuana in violation of R.C. 2925.11(A), (C)(3), a felony

of the third degree; Count Four of possession of cocaine in violation of R.C.

2925.11(A), (C)(4), a felony of the fifth degree; and Count Five of aggravated

possession of drugs in violation of R.C. 2925.11(A), (C)(1), a felony of the fifth

degree. (Doc. No. 16). Counts Two, Three, Four, and Five include a forfeiture

specification as to $8,396.00 in cash that is allegedly proceeds from drug activity.

(Id.). The same counts also include forfeiture specifications as to certain weapons

and ammunition used or intended for use in the commission or facilitation of the

relevant offenses. (Id.). On February 16, 2016, Barnes appeared for arraignment

and pled not guilty to the counts and specifications in the joint superseding

indictment. (Doc. No. 19).

{¶4} On May 3, 2016, Barnes filed a motion to suppress evidence in which

he sought the suppression of evidence gathered from the residence because, as

relevant here, Curtarelli’s consent to the search of the residence was involuntary and

was tainted by the initial entry of law enforcement into the home. Barnes further

argued in his motion to suppress evidence that the search was invalid because some

of the officials involved in the search were probation officers rather than police

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officers. The State filed a memorandum in opposition to Barnes’s motion to

suppress evidence on August 31, 2016. (Doc. No. 50). After a hearing, the trial

court denied Barnes’s motion to suppress evidence on September 14, 2016. (Doc.

No. 52). The trial court specifically concluded that law enforcement improperly

entered the residence initially, but the trial court also concluded that the taint of the

initial entry was dissipated by a significant intervening event—Barnes’s request to

use the restroom. (Id.). The trial court also concluded that Cutarelli’s consent was

voluntary, as she appeared coherent and did not manifest any health problems until

some time later when she had a seizure on the patio outside the apartment. (Id.).

The trial court further concluded that all of those who participated in the search had

the authority to do so. (Id.).

{¶5} On October 4, 2016, Barnes appeared for a change-of-plea hearing and

pled no contest to Counts Two and Three of the superseding joint indictment with

the attendant specifications pursuant to a negotiated plea agreement. (Doc. No. 62).

All other counts were dismissed. (Doc. No. 78). On November 17, 2016, the trial

court sentenced Barnes to five years in prison and a $10,000 fine as to Count Two,

as well as 30 months in prison as to Count Three, with the prison terms to be served

concurrently for a total of five years of incarceration. (Id.). The trial court further

ordered that Barnes’s interest in the property described in the specifications be

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forfeited. (Id.). The trial court filed its judgment entry of sentence on November

17, 2016. (Id.).

{¶6} Barnes filed his notice of appeal on November 23, 2016. (Doc. No. 81).

He brings two assignments of error for our review.

Assignment of Error No. I

The Trial Court Erred When It Found That A Significant
Intervening Event Had Occurred That Dissipated The Taint Of
The Illegal Entry Before The Written Consent to Search Was
Given.

{¶7} In his first assignment of error, Barnes argues that the trial court erred

when it concluded that a significant intervening event occurred, purging the taint of

law enforcement’s allegedly illegal entry into Barnes’s residence, which took place

before the consent to search was given. Specifically, Barnes argues his request to

use the bathroom at his residence was not a significant intervening event that purged

the taint caused by law enforcement’s initial entry into his residence. Barnes also

argues that Cutarelli’s consent was involuntary.

{¶8} A review of the denial of a motion to suppress involves mixed questions

of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At a

suppression hearing, the trial court assumes the role of trier of fact and, as such, is

in the best position to evaluate the evidence and the credibility of witnesses. Id. See

also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a

motion to suppress, “an appellate court must accept the trial court’s findings of fact

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if they are supported by competent, credible evidence.” Burnside at ¶ 8, citing State

v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s conclusions of

law, however, our standard of review is de novo, and we must independently

determine whether the facts satisfy the applicable legal standard. Id., citing State v.

McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

{¶9} The Fourth Amendment to the United States Constitution and Article I,

Section 14 of the Ohio Constitution protect individuals against unreasonable

searches and seizures by the government, and they protect privacy interests where

an individual has a reasonable expectation of privacy. State v. Fielding, 10th Dist.

Franklin Nos. 13AP-654 and 13AP-655, 2014-Ohio-3105, ¶ 15, quoting Smith v.

Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577 (1979). An expectation of privacy is

protected where an individual has manifested a subjective expectation of privacy

and that expectation is one that society recognizes as reasonable. Id., citing Smith

at 740, citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,

concurring). While the Fourth Amendment does not specifically provide that

unlawful searches and seizures will result in the suppression of ill-gotten evidence,

the United States Supreme Court has held that the exclusion of evidence is an

essential part of the Fourth Amendment. State v. Jenkins, 3d Dist. Union No. 14-

10-10, 2010-Ohio-5943, ¶ 9, citing Mapp v. Ohio, 367 U.S. 643, 649, 81 S.Ct. 1684

(1961) and Weeks v. United States, 232 U.S. 383, 394, 34 S.Ct. 341 (1914).

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{¶10} Consent to a search waves the requirement that the State procure a

warrant if that consent is freely and voluntarily given. State v. LaPrairie, 2d Dist.

Greene No. 2010CA-0009, 2011-Ohio-2184, ¶ 50. Whether consent is voluntary or

is instead the product of duress or coercion is a question of fact to be determined

based on the totality of the circumstances. Id. Factors to be considered in

determining whether consent is voluntarily given include: (1) the suspect’s

custodial status and the length of the detention; (2) whether consent was given in

public or at a police station; (3) the presence of threats, promises, or coercive police

procedures; (4) the words and conduct of the suspect; (6) the suspect’s awareness

of his right to refuse consent and his status as a “newcomer to the law”; and (7) the

suspect’s education and intelligence. State v. Fry, 4th Dist. Jackson No. 03CA26,

2004-Ohio-5747, ¶ 23, citing Schneckloth v. Bustamonte, 412 U.S. 218, 248-249,

93 S.Ct. 2041 (1973). Consent is not rendered involuntary or coerced simply

because police indicate a willingness to obtain a warrant in the event consent is

withheld. State v. Marland, 3d Dist. Logan No. 8-16-15, 2017-Ohio-4353, ¶ 27,

citing State v. Dunwoody, 5th Dist. Licking No. 2004CA49, 2005-Ohio-219, ¶ 19.

When consent follows some form of illegal police action, the question becomes

whether, “granting establishment of the primary illegality, the evidence to which the

instant objection is made has been come at by exploitation of that illegality or

instead by means sufficiently distinguishable to be purged of the primary taint.”

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LaPrairie at ¶ 51, quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct.

407 (1963). Whether consent is voluntary and whether the consent is tainted by a

prior illegality and thus is fruit of the poisonous tree are separate and independent

analyses. Id. at ¶ 52.

{¶11} In determining whether the taint of the initial entry has been removed,

we must consider the temporal proximity of the initial illegality to the consent, the

presence of any intervening circumstances between the illegality and the consent,

and, in particular, the purpose and flagrancy of official misconduct. U.S. v. Delancy,

502 F.3d 1297, 1309 (11th Cir.2007). The analysis is a fact-specific one, and no

single fact is dispositive. Id., citing Brown v. Illinois, 422 U.S. 590, 603 95 S.Ct.

2254 (1975). Though the factors enumerated above provide a useful framework,

we must not allow this factor-based analysis to obscure the underlying question,

which “generally involves a pragmatic evaluation of the extent to which the illegal

police conduct caused the defendant’s response.” Id. at 1310, quoting U.S. v. Bailey,

691 F.2d 1009, 1013 (11th Cir.1982).

{¶12} The doctrine of inevitable discovery provides that tainted evidence

remains admissible when evidence discovered during an initial illegal search would

have been ultimately or inevitably discovered during a lawful investigation. State

v. Workman, 3d Dist. Auglaize No. 2-15-05, 2015-Ohio-5049, ¶ 41, citing State v.

Perkins, 18 Ohio St.3d 193, 196 (1985). The rule permits the State to remove the

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taint from ill-gotten evidence by establishing that the unlawful act from which the

evidence resulted was “not a sine qua non of its discovery.” State v. Foster, 3d Dist.

Allen No. 1-14-54, 2015-Ohio-3401, ¶ 9, quoting U.S. v. Griffin, 502 F.2d 959 (6th

Cir.1974). For the exception to apply, the state must demonstrate (1) “that the police

possessed the leads making the discovery inevitable at the time of the misconduct

and (2) that the police were actively pursuing an alternative line of investigation

prior to the misconduct.” Id., quoting State v. Keith, 178 Ohio App.3d 46, 2008-

Ohio-4326, ¶ 10 (2d Dist.).

{¶13} A video-taped deposition in this matter took place on August 30, 2016.

(Aug. 30, 2016 Depo. at 3). At that proceeding, the state called Detective David

Troutman (“Troutman”) of the Marion Police Department. (Id. at 7). Troutman

testified that Cutarelli appeared to be coherent during his interactions with her—she

did not appear to be under the influence of anything, and she responded

appropriately to questions that were put to her. (Id. at 15). Troutman further

testified that Cutarelli was not arrested and was never told that she would be placed

under arrest. (Id. at 20).

{¶14} On cross-examination, Troutman averred that Cutarelli was told that

she had the right to refuse consent to the search, was never placed in custody, and

was never read her Miranda rights. (Id. at 63). Troutman also testified that none of

the officers drew a firearm. (Id. at 64). Troutman stated that, during the course of

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talking to Cutarelli, he expressed a willingness to contact a judge to seek a search

warrant for the premises if Cutarelli did not consent to the search of the residence.

(Id. at 73). Troutman also testified that the conversation between himself and

Cutarelli was a “pretty cordial” one and that Cutarelli “didn’t balk at” his request

for consent to search; Troutman said consent was “really not an issue with her.” (Id.

at 73); (Id. at 80). Troutman testified that Cutarelli was “very compliant.” (Id. at

80).

{¶15} On re-direct examination, Troutman testified that Cutarelli never

requested that law enforcement leave the residence. (Id.). Troutman further

asserted that he read the consent-to-search form to Cutarelli. (Id. at 84). This form,

signed by Cutarelli, attests to the fact that she gave the permission “freely and

voluntarily, without any threats or promises having been made.” (Defendant’s Ex.

B). It further informs Cutarelli of the fact that she has the right to refuse consent.

(Id.). Troutman testified that Cutarelli seemed to understand the consent form.

(Aug. 30, 2016 Tr. at 84). He asserted that Cutarelli asked no questions about the

document. (Id.). Troutman testified that at no point during his conversation with

Cutarelli did she indicate that she did not understand what was happening. (Id. at

86). Troutman asserted that he never threatened or yelled at Cutarelli, nor did he

see any other officers do so. (Id. at 86).

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{¶16} At the hearing on Barnes’s motion to suppress evidence on September

1, 2016, the State called Special Agent Matthew Komar (“Komar”) of the FBI, who

assisted in the execution of the warrant on September 9, 2015. (Sept. 1, 2016 Tr. at

7-8). On direct examination, Komar testified that Cutarelli “seemed fine” as

Troutman spoke with her. (Id. at 12). He testified that Cutarelli was responsive to

questions and that she did not appear to have any difficulty understanding what

Troutman said to her. (Id.). Komar testified that Cutarelli was never arrested, never

in custody, and was never handcuffed. (Id. at 27-28). He further asserted that law

enforcement never drew their firearms. (Id. at 28).1

{¶17} The State next called Marion County Adult Probation Officer Nate

George (“George”). (Id. at 48). On direct examination, George testified that

Cutarelli was responsive to the questions that Troutman asked her. (Id. at 54).

George further averred that, to his knowledge, Cutarelli did not indicate being ill.

(Id.). He testified that Cutarelli appeared coherent and that no one screamed at,

threatened, or handcuffed her. (Id. at 54-55).

{¶18} On cross-examination, George testified that he never heard anyone

read Cutarelli her Miranda rights. (Id. at 64). George asserted that the length of

1
Komar testified that law enforcement drew their weapons as they conducted a protective sweep of the
apartment, particularly of the upstairs portion of the apartment. (Sept. 1, 2016 Tr. at 32). However, we
presume that he meant no law enforcement drew their firearms in Cutarelli’s presence.

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time between Barnes’s arrest and Cutarelli’s signing of the consent form was

approximately ten minutes. (Id. at 70).

{¶19} On re-direct examination, George testified that he did not recall

hearing Cutarelli ask anyone to leave the residence. (Id. at 75).

{¶20} The State next called Detective Scott Sterling (“Sterling”) of the

Marion City Police Department. (Id. at 96). On direct examination, Sterling

testified that he did not believe Cutarelli was ever in handcuffs and that he did not

see anyone yell at or threaten her. (Id. at 99). Sterling further testified that Cutarelli

never instructed officers to leave the residence. (Id. at 100).

{¶21} The State also called Lieutenant Mark Elliot (“Elliot”) of the Marion

City Police Department, who testified that he spoke to Cutarelli and that she was

coherent when he did so. (Id. at 121, 125).

{¶22} The State then called Chief Probation Officer Jennifer Miller

(“Miller”) of the Marion County Adult Probation Department. (Id. at 153). On

direct examination, Miller testified that the length of time between the entry into the

residence and the search was approximately five to ten minutes. (Id. at 156). Miller

averred that Cutarelli never refused consent and never instructed those conducting

the search to leave the residence. (Id. at 157).

{¶23} We conclude that the trial court did not err by denying Barnes’s motion

to suppress evidence because the trial court’s conclusion that Cutarelli’s consent

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was voluntary is supported by competent and credible evidence. We begin our

analysis by noting that written consent is strong evidence of one’s willingness to

allow a search. State v. McLemore, 197 Ohio App.3d 726, 2012-Ohio-521, ¶ 24 (2d

Dist.). We further note that the record reveals that Cutarelli never testified that her

consent was in any sense coerced, and this too weighs in favor of concluding that

her consent was voluntary. State v. Camp, 5th Dist. Richland No. 14CA42, 2014-

Ohio-329, ¶ 25.

{¶24} In State v. Clements, the Fourth District Court of Appeals confronted

a set of facts in which law enforcement had entered the residence of the defendant

suspecting that he was engaged in the manufacture of drugs. 4th Dist. Hocking No.

15CA19, 2016-Ohio-3201, ¶ 7-8. Though the defendant was not present when law

enforcement arrived and entered the residence, he soon arrived. Id. at ¶ 11. Law

enforcement testified that they made clear to him that he was free to leave and was

not in custody or under arrest. Id. Law enforcement testified that Clements signed

a consent form allowing them to conduct a search of his residence, though that form

was eventually lost and so was not introduced into evidence at the suppression

hearing. Id. at ¶ 11-12. Law enforcement further testified that they did not observe

anything leading them to believe that Clements had difficulty understanding what it

meant to consent to a search or that Clements had any physical or mental malady

that rendered him less competent than any other member of the public. Id. at ¶ 12.

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Law enforcement also testified that they did not specifically inform Clements of his

right to refuse consent. Id. The court in Clements concluded that the trial court’s

finding that Clements consented voluntarily was based on competent and credible

evidence. Id. at ¶ 2.

{¶25} Similar facts are now before us. Agent Komar at the scene, as well as

multiple law enforcement and probation officers, testified that Cutarelli was

cooperative and compliant in her dealings with them. State v. Dean, 12th Dist.

Fayette No. CA2013-03-007, 2014-Ohio-448, ¶ 14 (noting that a willingness to

cooperate and speak with law enforcement weighs in favor of a finding of

voluntariness). See also State v. Fry, 4th Dist. Jackson No. 03CA26, 2004-Ohio-

5747, ¶ 25 (noting that “polite and courteous” interactions between law enforcement

and one who consents supports a finding of voluntariness). The testimony

uniformly indicated that no law enforcement officials threatened or yelled at

Cutarelli. Fry at ¶ 25. Moreover, testimony indicated that Cutarelli was never

threatened with arrest or put in custody, nor did she ever indicate a desire to have

officers leave her home during the approximately ten minutes prior to her consent

or at any time thereafter. Id. Testimony also established that the consent was given

at Cutarelli’s residence and not at a police station. Multiple witnesses further

testified that Cutarelli did not manifest any mental or physical difficulties and

demonstrated no lack of education or intelligence that would cast doubt on her

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ability to understand events as they unfolded. Clements at ¶ 12. The written consent

form Cutarelli signed is part of the record before us, and it specifically informed

Cutarelli that she had the right to refuse consent. McLemore at ¶ 24; (See

Defendant’s Ex. B). Troutman testified that Cutarelli had prior interactions with

law enforcement, including prior drug offenses. (Aug. 30, 2016 Depo. at 83). This

suggests that she was not a “newcomer to the law.” State v. Stepp, 4th Dist. Scioto,

No. 09CA3328, 2010-Ohio-3540, ¶ 24 (holding that evidence suggesting prior

offenses precludes one from being a “newcomer to the law”). Therefore, the trial

court’s conclusion that Cutarelli’s consent was voluntary is based on competent and

credible evidence. Clements at ¶ 2.

{¶26} Second, the trial court’s conclusion that the taint of the initial entry

was dissipated is supported by competent and credible evidence. U.S. v. Delancy,

502 F.3d 1297, 1313-1314 (11th Cir.2007). In DeLancy, the Eleventh Circuit Court

of Appeals confronted a set of circumstances in which police entered and searched

a residence, having been given consent to do so by the defendant’s girlfriend

Godfrey, who shared the residence with him. Id. at 1301-1302. The police in

DeLancy conducted an illegal protective sweep of the residence. Id. at 1308. In

concluding that the taint of the illegal search had dissipated by the time consent was

rendered, the court in DeLancy found that a “relatively brief period” of ten to fifteen

minutes between the illegal search and the consent weighed in favor of finding that

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the taint of the illegal search had dissipated. Id. at 1310-1311. The court explained

that the brief period of time weighed in favor of dissipation because the woman who

gave consent “was not handcuffed or detained” and because “the district court found

that the interaction was conversational in tone, and that the officers did not threaten

[the defendant’s girlfriend] in any way.” Id. at 1311. The court in DeLancy also

concluded that an intervening circumstance weighed in favor of finding dissipation

of the taint. Id. Specifically, the court held Godfrey’s review and signing of a

consent-to-search form to be an important intervening circumstance because the

form notified Godfrey of her constitutional rights. Id. In considering the purpose

and flagrancy of government conduct, the court found that this factor too weighed

in favor of finding that the consent was attenuated from the initial illegal search. Id.

at 1312. The court explained that, though the police in DeLancy entered illegally,

they did not do so for an illegal purpose. Id. That is, the police entered to ensure

their own safety and interview Delancy, not to conduct a thorough search of the

home. Id. In examining whether government misconduct was flagrant, the court

found that this factor also weighed in favor of finding that the taint of the illegal

entry dissipated, as police never handcuffed Godfrey, never pointed their weapons

at her, and that they conducted a limited protective sweep once inside the home. Id.

at 1312-1313.

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{¶27} Similar facts exist here. A relatively brief period of approximately ten

minutes separated the entry from Cutarelli’s signing the consent form. Id. at 1311.

The trial court credited extensive testimony that, during that time, Cutarelli was

coherent and able to make decisions, and officers did not handcuff, threaten, or

coerce Cutarelli. Id. (noting that a brief period of time between an illegality and

consent can weigh in favor of dissipation of the taint where the individual who

consented had conversational and non-threatening interactions with law

enforcement during that time). Cutarelli also reviewed and signed a consent form

that informed her of her constitutional rights, attested to the fact that she consented

voluntarily, and made clear that she had the right to refuse consent. Id. (noting that

the review and signing of a consent form is an important intervening circumstance

because it ensures that an individual is aware of his or her rights). The record also

reveals that, as in DeLancy, the initial entry by police was not for an unlawful

purpose. Id. at 1312 (describing the difference between an unlawful entry and an

entry for an unlawful purpose as “critical”). Troutman entered only so that he would

not have to yell across the apartment to Cutarelli in order to be heard. Id. The police

misconduct in this case, if any, was certainly not flagrant, as the record indicates

that police conducted themselves professionally once they entered the home, never

threatening or handcuffing Cutarelli and never drawing their weapons on her. Id. at

1313.

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{¶28} Therefore, the trial court’s conclusion that any illegality arising from

the initial entry was dissipated by the time Cutarelli consented to the search of the

residence is supported by competent and credible evidence.

{¶29} Even if we were to determine that the trial court’s conclusions that

Cutarelli’s consent was voluntary and was attenuated from the initial entry by police

are not supported by competent and credible evidence, the search still could be

upheld based on the doctrine of inevitable discovery. State v. Foster, 3d Dist. Allen

No. 1-14-54, 2015-Ohio-3401, ¶ 9. Barnes’s request to use the bathroom bore no

connection to the entry into the residence by law enforcement. That is, even if law

enforcement did not enter the residence, Barnes inevitably would have requested to

use the facilities, and law enforcement, in the course of their independent

investigation of Barnes, would have accompanied Barnes into the residence in order

for him to use the facilities. Barnes would have consented to the presence of the

police in his home so that he could do so. Barnes’s hypothetical consent would have

made law enforcement aware of the drugs in the vicinity of Cutarelli, as well as the

drugs and weapons in the bathroom. That Barnes was in custody would not have

rendered his hypothetical consent involuntary or coerced. State v. Riggins, 1st Dist.

Hamilton No. C-030626, 2004-Ohio-4247, ¶ 18.

{¶30} For the reasons explained above, Barnes’s first assignment of error is

overruled.

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Assignment of Error No. II

The Trial Court Erred When It Found That The Probation
Officers Had Authority To Search [The Residence] Pursuant To
The Written Consent Obtained Without Addressing Their
Authority As Probation Officers.

{¶31} In his second assignment of error, Barnes argues that the trial court

erred when it found that the probation officers who aided in this search had the

authority to do so under the consent form that was signed. Specifically, Barnes

argues that probation officers are without such authority because R.C. 2301.28 does

not provide probation officers authority to supervise individuals who are not on

probation. Barnes further argues that R.C. 2951.02 outlines the searches that a

probation officer in the scope of his or her duties may undertake and does not

include searches such as the one at issue here. Barnes also argues that R.C. 2301.30

enumerates the duties of probation officers, and those duties do not include conduct

that occurred in this case. Finally, Barnes argues that the consent form signed in

this case allowed for the designation of other officers to conduct the search, but did

not permit probation officers to be designated to do so—that the term “officers”

applied to police officers but not probation officers.

{¶32} To the extent Barnes argues that the trial court failed to apply the

proper statutes in this case, we review this assignment of error de novo. State v.

Hillman, 10th Dist. Franklin Nos. 09AP-478, 09AP-479, and 09AP-480, 2010-

Ohio-256, ¶ 11, citing State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, ¶ 6-7

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(noting that the proper standard of review is de novo where the issue is whether a

court erroneously interpreted or applied the law). To the extent Barnes argues that

Cutarelli’s consent to the search extended only to police officers rather than

probation officers, we are guided by the same standard of review we described

above, asking whether the trial court’s findings of fact as to the scope of Cutarelli’s

consent are based on competent and credible evidence. State v. Brown, 7th Dist.

Columbiana No. 03CO49, 2004-Ohio-3364, ¶ 9-14.

{¶33} We conclude that Barnes’s statutory arguments are unpersuasive.

Barnes’s statutory arguments turn on the fact that some of the individuals involved

in this search were probation officers rather than police officers. This distinction is

meaningless because “[p]robation officers have all the powers of regular police

officers[.]” R.C. 2301.27. Though we may assume without finding that the

probation officers who participated in this search did not derive the authority to do

so from the specific statutes Barnes cites, the legislature has not evinced a more

general intent to treat probation officers differently from police officers; in fact, it

has done just the opposite. R.C. 2301.27.

{¶34} We are cognizant of the fact that the scope of a search based on consent

is determined by the scope of the consent itself and that the requirement to procure

a warrant is waived only to the extent granted by the consent. State v. Brown, 7th

Dist. Columbiana No. 03CO49, 2004-Ohio-3364, ¶ 13, quoting U.S. v. Dichiarinte,

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445 F.2d 126, 129 (7th Cir.1971). The United States Supreme Court has recognized

that the proper inquiry for measuring the scope of consent is objective

reasonableness—asking what a reasonable person would have understood based on

the exchange between law enforcement and a suspect. State v. Stepp, 4th Dist.

Scioto, No. 09CA3328, 2010-Ohio-3540, ¶ 28, citing State v. Simmons, 4th Dist.

Highland No. 05CA4, 2006-Ohio-953, ¶ 29, citing Florida v. Jimeno, 500 U.S. 248,

251, 111 S.Ct. 1801 (1991).

{¶35} Though Barnes argues incorrectly that applicable statutes treat

probation officers differently from police officers, he cites no authority for the

proposition that a consent form that allows “officers” to search a residence must

refer only to police officers but not to probation officers. Nothing in the record

before us indicates that a reasonable person would have understood Cutarelli’s

consent permitting officers to search the residence to be applicable to certain law

enforcement officers but not to others.

{¶36} We therefore conclude that the trial court did not err in concluding that

the probation officers who participated in this search had the authority to do so.

Barnes’s second assignment of error is overruled.

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Case No. 9-16-58

{¶37} Having found no error prejudicial to Appellant in the particulars

assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.

/jlr

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