Appendix — Shoemaker v. Riley

APPENDIX

Opinion, March 22, 1982, United States Court

of Appeals for the Sixth Circuit, Riley v.

Gray, 674 F.2d 521 (6th Cir. 1982) ........

Order, January 9, 1980, United States District

Court for the Northern District of Ohio,

Western Division holding that Stone v.

Powell, 428 U.S. 465 (1976) did not

preclude review of the Fourth Amend-

ment claim and ordering that an evidentiary

hearing be conducted ..............5.45-

Order, September 5, 1980, United States District

Court for the Northern District of Ohio,

Western Division dismissing habeas corpus

I bass 0 én i a iaiak ls Es CORREA eco oe

Order, January 22, 1981, United States District

Court for the Northern District of Ohio,

Western Division granting motion to alter

or amend pursuant to Rule 59{d) and

ordering that the writ of habeas corpus issue. .

Opinion, January 20, 1978, Ohio Court of

Appeals for the Third Judicial District,

affirming the trial court judgment..........

-A-26

A-1

No. 81-3097

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOSEPH RILEY,

Petitioner-Appellee,

v.

FRANK H. GRAY, Supt.,

Respondent-Appellant.

ON APPEAL from the United States District Court

for the Northern District of Ohio, Western Division.

Decided and Filed March 22, 1982.

Before: EDWARDS, Chief Judge, JONES, Circuit

Judge; CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge. This appeal

raises questions concerning the scope of federal habeas

corpus relief, 28 U.S.C. Sec. 2254, for violations of the

appeals from the order granting the writ, asserting that

the exclusionary rule would not be served by excluding

the evidence used to convict Riley. We believe that

was

habeas relief properly granted and, therefore, we

ee lie

asked to see the weapon which had been used. Christian

led him through the tavern and to the door of the second

floor apartment. The door, which was the only entrance

ment, he left, closing and locking the door behind him.

Heinrichs retained possession of the keys.

Shortly after this initial entry, the Chief of Police,

Charles Watson, arrived at the Red Owl Bar. Using the

key furnished by Heinrichs, Watson entered the apart-

ment and saw the gun on the table, as well as blood on

the floor. After this brief entry Heinrichs again locked

the door.

The final warrantless entry was made by Heinrichs

and Deputy Sheriff David Harrow. The Paulding Police

Department had summoned Harrow because of his

expertise in collecting and evaluating physical evidence.

Harrow was to “process” the second floor apartment by

removing, photographing, and evaluating any physical

evidence which was found. While conducting the investi-

1 Christian testified, in the hearing held by the district court, that he

took Riley’s keys as he was leaving the apartment, after having already shot

Riley. Apperentiy, he picked up the keys and locked the door behind him.

gation, Harrow noticed a bullet hole in the wall between

the kitchen and the bedroom. in an effort to find the

variety of contraband, including automatic weapons,

After the contraband was seized, the Paulding County

Grand Jury indicted Riley for aggravated trafficking,

trafficking in marijuana, drug abuse, possession of a

dangerous ordnance, and carrying a concealed weapon.

Riley moved to suppress the contraband, but the motion

was denied. Riley was convicted of aggravated traffick-

ing, trafficking in marijuana, and drug abuse. Riley

appealed to the Ohio Court of Appeals for the Third

District and argued that the drugs should have been sup-

pressed because they had been seized pursuant to a war-

,

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habeas corpus with the United States District Court for

precluded Stone v. Powell, 428 U.S. Pag rh

was referred to a magistrate, who determined

was not precluded, and recommended

hearing be held. The district court

magistrate’s conclusion that Stone did not

review, held an evidentiary hearing, and con-

e fourth amendment claim was without

Id be dismissed. The petitioner filed a

motion reconsideration with the court, pointing out

that Mincey v. Arizona, 437 U.S. 385 (1978), held that

no “crime scene” exception to the warrant requirement

exists. The district court reevaluated the record, deter-

appt

an

The threshold issue is whether Stone v. Powell, 428

U.S. 465 (1976), prevents habeas review of the peti-

habeas review ‘“‘where the State has provided an

opportunity for full and fair litigation of a fourth amend-

ment claim ....” /d. at 494. This circuit, in Moore v.

Cowan, 560 F.2d 1298 (6th Cir. 1977), concluded that

Stone did not require that the state court rule on the

merits of each claim. /d. at 1302. Instead, we indicated

that the state court need do not more than “‘take cog-

nizance of the constitutional claim and rule in light

thereof.”’. /d. Thus, in deciding whether the petitioner

received an opportunity for a full and fair hearing in the

state court, we must determine whether the state court

took “cognizance” of the petitioner's claim.

The respondent argues that Stone requires only that

the state provide the procedural mechanism for the

presentation of fourth amendment claims. The respon-

dent asserts that the scope of our inquiry is limited to the

opportunity available in theory, and the opportunity

which is in fact afforded to a particular litigant is of no

consequence. £.g., Caverv. Alabama, 577 F.2d 1188,

1193 (Sth Cir. 1978). For example, in Wi//iams v. Brown,

609 F.2d 216 (5th Cir. 1980), the state court failed to

reach the merits of the fourth amendment claim because

of a procedural error. in affirming the district court’s

dismissal of the petition, the Fifth Circuit stated that “in

the absence of allegations that the proceedings provided

by a state to fully and fairly litigate fourth amendment

claims are systematically applied in such a way as to

prevent the actual litigation of fourth amendment claims

. . . » Stone must apply with equal force to procedural

mistakes that thwart the presentation of fourth amend-

ment claims.” /d. at 220. The inquiry is limited to the

adequacy of the mechanism in the abstract; its effective-

ness in a particular situation is not pertinent.?

The petitioner argues for a narrower interpretation

of Stone. Essentially, he relies upon Gamb/e v. Oklahoma,

583 F.2d 1161 (10th Cir. 1978), in which the Tenth

Circuit concluded that “[o] pportunity for full and fair

consideration includes, but is not limited to, the proce-

dural opportunity to raise or otherwise present a Fourth

Amendment claim. it also includes the full and fair

evidentiary hearing contemplated by Townsend. Further-

more, it contemplates recognition and at least colorable

application of the correct fourth amendment constitu-

tional standards.” /d. at 1165. Thus, the Tenth Circuit

reviews the merits of the fourth amendment claim, at

least to determine if there was egregious error.

2 The Seventh Circuit has adopted a similar position with respect

to Stone. See United States ex rel, Maxey v. Morris, 591 F 2d 386, 388-89

(7th Cir. 1979) (procedural opportunity wes all that Stone requires). The

Seventh Circuit has not, however, faced a factual situation similar to Williams.

nes

tions, the special deterrent value of the exclusionary rule

is at its nadir and should not be applied. /¢. at 538-40

(White, J., dissenting). Thus, the value of reviewing these

claims collaterally is smali. Stone is predicated on the

Court’s assessment of the exclusionary rule's utility;

application of the rule is justified when the state court

deni2s the petitioner a full and fair opportunity to litigate

his claims. /d. at 494. We perceive no difference in the

utility of the exclusionary rule where an opportunity is

frustrated because of an inadequate procedural mechanism

or where an opportunity is frustrated because of the

manner in which the mechanism is applied. in either

instance, the consequence to the defendant is the same:

an opportunity to litigate the claim has been denied

because of a procedural “>ortcoming.

Similarly, we decline to adopt the petitioner's

interpretation of Stone. We believe that a limited inquiry

into the correctness of state court decisions, occurring as

@ matter of course in the district courts, would be incon-

sistent with Stone. /d. at 493 n.35. The language of

Gamble, however, entails an examination of each state

Mintz, 631 F.2d 247, 250 (3rd Cir. 1980); Gates v.

Henderson, 568 F.2d 830, 840 (2nd Cir. 1977) fen banc},

cert. denied, 434 U.S. 1038 (1978).

Henderson, S68 F.2d at 840. See also Wainwright v. Sykes, 433 US. 72

(1977).

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4 See State v. Morris, 42 Ohio St. 2d 307, 329 N.E.2d 85 (1975)

(Syllabus No. 1) (state's failure to raise standing amounts to a weiver).

5 The petitioner was convicted of one count of aggravated trafficking,

Sec. 2925.03 (A) (6) of Ohio Rev. Code Ann.; one count of trafficking in

marijuana, Sec. 2925.03 (A) (6) of Ohio Rev. Code Ann.; and three counts

of drug ebuse, Sec. 2925.11 (A) of Ohio Rev. Code Ann. Possession is a

necessary element of each of these offenses. Further, the district court

found, and the respondent does not dispute the finding, that petitioner does

have standing to raise the fourth amendment claim.

v. Hunter, 550 F.2d 1066, 1072 (6th Cir. 1977). We

believe, however, that the state appellate court frustrated

the petitioner’s opportunity to litigate his fourth amend-

ment claims because it failed to remand the case to the

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knowingly

and freely given. Schreckloth v. Bustamonte, 412 US.

218, 223 (1973); Vale v. Louisiana, 399 U.S. 30, 35

(1970). In order for the consent to be valid, the person

giving the consent must have the authority to do so,

Stoner v. California, 376 U.S. 483, 489 (1963), and the

consent must be voluntarily given. Schneck/oth, 412

U.S. at 223.

We believe Christian’s consent was not valid because

he lacked authority to permit a search of the apartment.

A person may consent to a search if he possesses ‘““common

premises or effects sought to be inspected.” United

Christian did not live in the petitioner’s apartment.

had known the petitioner for several years,

not a regular visitor to the apartment and, except

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Finally, the respondent argues that the deterrent

purpose of the exclusionary rule would not be served by

the suppression of the evidence seized in this case,

because the officers hac a reasonable, good faith belief

that Christian had authority to consent to the search and

that the search was lawful. Essentially, the respondent

asks us to adopt the rule and rationale of United States v.

Williams, 622 F.2d 830 (5th Cir. 1980) fen banc), cert.

denied, 449 U.S. 1127 (1981). The Fifth Circuit in

rule serves no deterrent purpose when the police illegally

seize evidence because of a reasonable, good faith belief

that they have acted properly. /d. at 847. Because we

have concluded that the officers’ belief that the search

was proper was unreasonable under the circumstances, we

need not decide whether such an exception exists. See

United States v. Downing, 665 F.2d 404 (1st Cir. 1981).

7 The respondent siso argues thet Christien had apperent suthority

to consent to the seerch because his possession of the keys caused the police

officers to reasonably believe thet he, in fect, possessed the requisite suthority.

This contention can be summerty dismissed. Stoner v. California, 376 US.

463, 488 (1964).

A-13

The officers’ belief that Christian’s implicit consent

permitted them to enter the apartment was unreasonable.

The only objective fact which ordinarily might suggest

that Christian had authority to consent is his possession

of the apartment key. Officer Heinrichs, Deputy Harrow,

and Chief Watson testified that they did not know who

lived in the apartment. Watson testified that he did nct

ask Christian whether the apartment belonged to him and

that, to his knowledge, no one else asked that question.

Harrow indicated that he was unaware whether permission

for the search had even been given at all. The law is

reasonably clear that there must be some sort of connec-

tion between the person consenting to the search and the

area to be searched. United States v. Matlock, 415 U.S.

at 171.7. Thus, the extent of Christian’s dominion over

the apartment was vital to his capacity to consent to the

search. The faiiure of the police to inquire into that

subject is unreasonable. if we were to hold that this

course of conduct supports an objectively reasonable

belief, then we would, in effect, be condoning depriva-

tions of constitutional rights which are the result of

negligent police conduct. Moreover, if we held that the

police had a reasonable belief, we would, in effect,

encourage the police to avoid inquiring into the facts of

the situation. The exciusionary rule is designed to deter

negligent, as well as wilful, deprivations of constitutional

rights. Michigan v. Tucker, 417 U.S. 433, 447 (1974).

Therefore, the failure to suppress evidence which is

improperly obtained primarily because the police failed

to inquire and ascertain the operative facts would be

inconsistent with the deterrent purpose of the exclu-

sionary rule.

The judgment of the district court is affirmed.

“4

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A14

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

No. C 739-280

JOSEPH RILEY,

Petitioner,

vs.

FRANK H. GRAY,

Superintendent, Ohio State Reformatory,

Respondent.

MEMORANDUM & ORDER

FILED, January 9, 1980, 4:35 p.m.

Carr, Magistrate:

This is a petition for a writ of habeas corpus, filed

by the petitioner pursuant to 28 U.S.C. Section 2254.

- On October 11, 1979, this case was referred for a

Magistrate’s Report and Recommendation. Upon review

of the entire file and the pleadings and arguments of the

parties, it appears that review of this petition is not

barred by the doctrine of Stor> v. Powell, 428 U.S. 465

(1976). it further appears that, before a final determina-

tion of petitioner’s claim can be made, an evidentiary

hearing should be held.

in conformity with Rule 77(d) F.R.C.P. please take notice that the follow-

ing order of judgment wes entered in this Court on: January 10, 1980

James S. Gallas, Clerk

A-15

ing the motion was denied. On appeal, the state appellate

court ruled sua sponte that petitioner had failed to prove

his standing at the suppression hearing, and thereupon

overruled the assignment of error without reviewing or

ruling on the merits of the petitioner’s fourth amendment

claims. The court of appeals considered other claims

(not at issue in this case) raised by the petitioner, and

affirmed the conviction. The Supreme Court of Ohio

overruled petitioner’s motion to that court for leave to

appeal. A state court post-conviction petition was

unsuccessful. Thus, petitioner has exhausted his state

1. Stone v. Powell

The_threshhold question in this case is whether the

petitioner had a full and fair opportunity to litigate his

fourth amendment claim in the state courts, in light of

the decision of the state court of appeals that petitioner

lacked standing, and its failure to address the merits of

the petitioner’s claims that the seizure of the*harcotics

was unconstitutional. This threshold question can be

stated as follows: where a defendant has a full suppression

hearing in the trial court, but is denied the opportunity

for a decision by state reviewing courts, can he obtain

habeas corpus review despite the restrictions imposed by

Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037 (1976).

be

At the outset, it should noted that the state

appellate court disregarded applicable Ohio law when it

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consider or rule on the question.

sion is an essential element of the offense, the defendant

is deemed to have “automatic” standing under Jones v.

United States, 362 U.S. 257, 80 S. Ct. 425 (1960);

State v. Morris, 42 Ohio St. 2d 307, 329 N.E. 2d 85

(1975). See generally 2 LaFavre Search and Seizure

section 11.3(g) (1978). In addition, though not specifi-

cally disclosed at the suppression hearing (presumably

because of the prosecutor’s failure to challenge peti-

tioner’s standing), the trial record makes clear (Tr. 129),

and it is undisputed in the instant case that the premises

searched were occuped by the petitioner as his residence.

In such circumstances petitioner’s standing is clear. See

id. section 11.3(a); State v. Keeling, 182 N.E. 2d 60

(C. P. Cuyahoga Cty. 1962).

In sum, petitioner’s fourth amendment claim cannot

be overcome in this court, nor could it be properly over-

ruled in the state courts, on the basis that he lacked

standing. In reaching its result, the state court of appeals

disregarded applicable state procedural principles, see

Morris, supra, and federal and state decisions which make

petitioner’s standing clear.

——

A-17

Nonetheless the question remains: Was Stone v.

Powell satisfied by the full suppression hearing in the

state trial court? In Stone, the Supreme Court held:

unconstitutional search or seizure was

introduced at his trial. 428 U.S. at 482,

With reference to the issue in the instant case — whether

“full and fair litigation’’ requires an opportunity for a

decision in a reviewing court, as well as in the trial court

— the Court suggested in a footnote that an opportunity

for appellate determination of the merits of a fourth

amendment claim was a component of the requisite

“full and fair litigation”:

We hold only that a federal court need

not apply the exclusionary rule on habeas

’ review of a Fourth Amendment claim

absent a showing that the state prisoner

was denied an opportunity for a full and

fair litigation of that claim at trial and on

direct review. 428 U.S. at 495, 96 S. Ct.

at 3053 n.37.

Elsewhere in its opinion, the Court makes additional

mention of consideration of claims at trial and on direct

review. See 428 U.S. at 486, 489, 96 S. Ct. at 3048,

3050.

A-18

In the relatively few cases which have considered the

question of the need for an opportunity for appellate

review, federal courts have consistently held that to ful-

fill the “full and fair litigation’’ requirement of Stone,

the states must allow determination at two levels. Gambie

v. Oklahoma, 583 F.2d 1161 (10th Cir. 1978); Mack v.

Cupp, 564 F.2d 898 (9th Cir. 1977); Pulver v. Cunning-

ham, 419 F. Supp. 1221 (S.D. N.Y. 1976). Thus, the

prevailing approach appears, as stated in Pu/ver, to be:

that the opportunity to litigate encom-

passes more than an evidentiary hearing

in the trial court. That is, it includes that

corrective action available through the

appellate process on direct review of the

judgment of conviction. 419 F. Supp. at

1224.

in Moore v. Cowan, 560 F.2d 1298, 1301 (6th Cir.

1977), the Sixth Circuit has stated that a state appellate

court must “take cognizance of the constitutional claim

and render a decision in light thereof.” Moore indicates

that a state reviewing court need not expound upon a

fourth amendment claim where it can be determined that

the violation was harmless beyond a reasonable doubt.

560 F.2d at 1302.

On the record in the instant case, it cannot be said

that the state court of appeals took cognizance of the

constitutional claim and rendered a decision in light

thereof, in view of that court's failure to follow state

procedural requirements and controlling state and federal

standing principles. Thus, it is apparent that, if directly

presented with the issue in this case, the Sixth Circuit

would adopt the approach of other federal courts and

hold that Stone v. Powell does not restrict federal

A-19

1. By Officer Heinrichs, in response to his

request to James Christian to see the

gun (Tr. 7-8, 17-22);

2. By Officer Heinrichs and Chief Watson

(Tr. 10-12, 23-25, 33-34); and

3.By Officer Heinrichs and Deputy

Harrow “‘to process the crime scene.”

(Tr. 12-15, 45-58).

The state contends that none of these intrusions required

a prior search warrant because the record shows consent

by James Christian.

The record developed at the suppression hearing

shows, at most, however, that Christian's consent (assum-

ing he (a) cou.d and (b) did in fact consent) was respon-

sive to direct and specific questions by Officer Heinrichs:

“Where is the gun?” .. . | want to see it.” (Tr. 7) This

purpose was accomplished by the brief, only slightly

intrusive first entry into the apartment (Tr. 8).

The present record, aside from reference to the fact

that Christian accompanied Chief Watson and Officer

Heinrichs when the second entry occurred (Tr. 10),

contains no evidence regarding a further request for per-

‘7

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With reference to Christian’s consent, the following

questions appear pertinent:

1. Did Christian have actual authority

from the petitioner to consent to the

entry of others to petitioner’s apart-

ment?

2. if not, did he exhibit such apparent

authority that the officers reasonably

could conclude that he could consent

to their entry?

3. Was Christian's consent voluntary in

light of the totality of the circum-

stances?

4. What was the scope of the consent,

assuming such was voluntarily given?

It does not appear from the record of the suppression

hearing that sufficient evidence has been developed to

enable this court to ascertain the answers to all of these

questions. Therefore, an evidentiary hearing directed to

developing such further evidence as the parties desire to

submit concerning these four questions shall be held.

In denying suppression, the state trial court relied,

in part on the fact that Deputy Harrow was investigating

a crirne scene when he observed the narcotics. Respondent

has not addressed petitioner’s arguments that no crime

scene exception to the warrant requirement exists in

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Therefore, for the foregoing reasons, it is hereby

ORDERED

That an evidentiary hearing will be held in Room

317B, United States Courthouse and Customshouse,

Toledo, Ohio, on a date and at a time to be determined

by the United States Magistrate.

So ordered.

/s/ James G. Carr

James G. Carr

United States Magistrate

Toledo, Ohio

January 9, 1980

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

No. C 79-280

JOSEPH RILEY,

Petiti :

vs.

FRANK H. GRAY, Supt.,

Respondent.

OPINION and ORDER

FILED, September 5, 1980, 11:49 a.m.

WALINSKI, J:

This cause came on for an evidentiary hearing on

petitioner’s claim that his Fourth Amendment rights

were violated by an illegal search and seizure, resulting in

his conviction for a possession offense involving controlled

substances. The respondent vigorously opposes peti-

tioner’s claim.

The circumstances surrounding the events leading to

the necessity for police searches are unusual.

Petitioner occupied an apartment over a tavern

known as the Owl Bar in Paulding, Ohio. On the day

in question, petitioner and several friends gathered at his

apartment preparing to go shooting. Among the friends

was one James Christian who, in the course of examining

and preparing a handgun, caused it to discharge, striking

the petitioner. The companions transported the peti-

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leading everitually to petitioner’s conviction. Christian

was never brought to trial on the shooting inciden

Prior to trial, the trial court held a suppression

hearing on petitioner’s unlawful search and seizure claim,

and overruled the motion to suppress. Since the record

of the suppression hearing was minimal and the appellate

court did not specifically address the Fourth Amendment

claim, this Court, on the recommendation of the United

States Magistrate, James Carr, granted an evidentiary

hearing so that petitioner's Fourth Amendment claim

would receive full consideration.

of the alleged crime. Kirvelaitis v. Gray, 513 F.2d 213

(6th Cir. 1975).

did the proper thing in obtaining a search warrant for the

entire premises before seizing the contraband.

IT ISSO ORDERED.

/s/ J. Walinski

United States District Judge

Toledo, Ohio.

September 5, 1980.

In conformity with Rule 77(d) F.R.C.P. please take notice that the follow-

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

No. C 79-280

JOSEPH RILEY,

Petitioner,

vs.

FRANK H, GRAY, Supt.,

Respondent.

OPINION and ORDER

FILED, January 22, 1981, 1:51 p.m.

WALINSKI, J:

This cause came to be heard on Petitioner Joseph

Riley’s motion for relief from judgment pursuant to

Rule 60(b)(1) and (6) of the Federal Rules of Civil

Procedure. Subsequently petitioner filed a motion to

amend his motion for relief from judgment to state that

said motion was also brought pursuant to Rule 59(e).

For good cause shown, said motion to amend is hereby

granted.

Petitioner filed his petition for a writ of habeas

corpus pursuant to 28 U.S.C. section 2254, which was

referred to the Magistrate for a Report and Recommenda-

tion on October 11, 1979. On the recommendation of

the United States Magistrate, James Carr, this Court

granted an evidentiary hearing so that petitioner’s Fourth

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Amendment claim would receive ful! consideration. The

evidentiary hearing was held on August 12, 1980, and

this Court’s order denying the petition for a writ of

habeas corpus was filed on September 5, 1980.

Petitioner’s present motion for relief from judgment

specifically questions the fact pattern upon which this

Court’s decision was based. On reconsideration the Court

finds that petitioner’s motion is well taken and will

accordingly state the corrected fact pattern and the legal

consequences which flow therefrom.

Petitioner occupied an apartment over a tavern

known as the Red Owl Bar in Paulding, Ohio. On

September 29, 1976, the Paulding Village Police arrived

at the entrance of the tavern in order to investigate the

report of a shooting. Officer Walter Heinrichs found

petitioner lying in the front doorway, losing blood from a

gunshot wound, At the direction of the tavern owner,

Officer Heinrichs proceeded to the lavatory where he

found Mr. James Christian being physically sick in one of

the stalls. Mr. Christian explained to the officer that he

had shot petitioner by accident, and at that point Officer

Heinrichs asked to see the gun that Christian had used.

Mr. Christian led Officer Heinrichs to the second

floor apartment. There was only one entrance to this

apartment which was locked. Christian, who had

removed petitioner’s keys, was shaking too hard to open

the door so he handed the keys to Heinrichs. Heinrichs

unlocked the door and took about two steps inside the

apartment where he observed a revolver on the kitchen

table. He looked quickly around the apartment and then

left, locking the door and keeping the keys.

Very soon afterwards Chief of Police Charlies Watson

arrived at the scene whereupon the officers en the

apartment for a second time and again viewed the gun on

the table and observed blood on the carpet. The officers

again left the apartment and locked the door. The Chief

then ordered his men to send for the mobile evidence van

so they could process the crime scene. The mobile

evidence van arrived shortly thereafter and the officers

conducted an on the site investigation of the shooting

during which physical evidence including other guns,

suspected marihuana and drugs were found.

After consultation, the officers left the apartment

for the purpose of obtaining a search warrant for the

entire premises. After obtaining the search warrant, the

officer returned to the apartment and seized what turned

out to be controlled substances, leading eventually to

Petitioner’s conviction.

The Fourth Amendment proscribes all unreasonable

searches and seizures. Warrantliess searches are per se un-

reasonable under the Fourth Amendment subject to only

a few exceptions. Katz v. United States, 389 U.S. 347

(1967). A recent Supreme Court decision has dealt with

the “crime scene” exception which respondent has relied

on in this case.

in Mincey v. Arizona, 437 U.S. 385 (1978), the

Supreme Court ruled that Arizona’s “murder scene

exception’’ to the warrant requirement was inconsistent

with the Fourth and Fourteenth Amendments. In that

case an undercover officer was shot and killed and two

other persons were wounded during a narcotics raid on

petitioner’s apartment, The narcotics agents looked

about quickly for other victims but refrained from

further investigation, merely guarding the suspects and

ere:

the premises. Within ten minutes, however, homicide

detectives arrived and took charge of the investigation.

They conducted a warrantless search which lasted four

days.

The Arizona Supreme Court held that the warrant-

less search of a homicide scene is permissible under the

Fourth and Fourteenth Amendments. The United States

Supreme Court rejected this argument and stated that:

Except for the fact that the offense

under investigation was a homicide, there

were no exigent circumstances in this

case * * * * There was no indication that

evidence would be lost, destroyed, or

removed during the time required to

obtain a search warrant. indeed, the

police guard at the apartment minimized

that possibility. And there is no sugges-

tion that a search warrant could not easily

and conveniently have been obiained. We

decline to hold that the seriousness of the

offense under investigation itself creates

exigent circumstances of the kind that

under the Fourth Amendment justify a

warrantless search.

ld. at 394.

Thus there is no “crime scene” exception which

would justify the warrantless search in this case. The

must be limited to only the exigencies upon which it is

based. Certainly after the second entry it was clear that

there were no other victims or assailants in the apart-

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situation. United States v. Montano, 613 F.2d 147

(6th Cir. 1980). See also, United States v. Mayes, 518

F.2d 675 (6th Cir. 1975).

States v. Matlock, 415 U.S. 164 (1974); United States v.

Cook, 530 F.2d 145 (7th Cir. 1979).

Since there is no valid exception to the warrant

requirement in this case, the evidence seized in the

warrantless search should have been suppressed.

For the foregoing reasons, and that reasoning set

forth in the Magistrate’s recommendation,

IT iS ORDERED that petitioner’s motion for relief

from judgment should be, and hereby is, granted.

IT 1S FURTHER ORDERED that the petition

should be, and hereby is, granted.

/s/ J. Walinski

United States District Judge

Toledo, Ohio.

January 22, 1981

In conformity with Rule 77(d) F.R.C.P. please take notice that the following

Order of judgment was entered in this Court on: January 22, 1981

; James S. Galles, Clerk

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IN THE COURT OF APPEALS OF THE THIRD

APPELLATE JUDICIAL DISTRICT OF OHIO

STATE OF OHIO, PLAINTIFF—APPELLE, v. JOSEPH

RILEY, DEFENDANT—APPELLANT

MEMORANDUM OPINION

(No. 11-77-7 - Decided January 20, 1978)

APPEAL: Court of Appeals for Paulding County.

’ MR, J. DAVID WEBB, Prosecuting Attorney, for Appellee.

MR. RALPH DeNUNE III, for Appellant.

GUERNSEY, J. Appellant was indicted, tried and

convicted in the Court of Common Pleas of Paulding

County for the crimes of aggravated trafficking in drugs

in violation of R.C. 2925.03(A)(6), trafficking in

Marijuana in violation of R.C. 2925.03(A)(6) and of drug

abuse in violation of R.C. 2925.11(A). He appeals

assigning error in three particulars.

First Assignment of Error. “Denial of defendant-

appeliant’s motion to suppress constituted prejudicial

error since the warrant for the search of the defendant-

appellant’s house was not obtained until after the police

had entered and searched the premises in violation of the

defendant-appellant’s rights under the fourth and four-

teenth amendments to the United States Constitution.’”’

On January 21, 1977, defendant filed his pre-trial

motion “for an order suppressing all evidence seized by

police authorities on or about the 29th day of September,

1976, from defendant's residence located at 117-1/2 W.

Perry Street, Apt. 2, Paulding, Ohio,” for the asserted

reason that the warrant upon which seizure was made

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was based on the affidavit of one Harrow upon informa-

tion received by him as the result of a “werrantiess,

unreasonable search.”

We are limited in our review of this motion and the

ruling thereon to the transcript of the hearing on the

a police call Police Officer Heinrichs of the Village of

Paulding found the defendant lying in the Red Owl

Tavern with a gunshot wound in his body; that he

inquired who did it and was directed to a restroom where

he found one James Christian vomiting; that he asked

Christian where the gun was and Christian said, “It’s

upstairs,"’ and upon Christian being told that the officer

wanted to see it, they proceeded out the door and up the

stairs to a second floor apartment, and that Christian

voluntarily unlocked and opened the door and they

took about two steps inside the apartment and the officer

saw a weapon lying on the table. There was further

evidence adduced at the hearing on the motion that they

left the apartment, secured the door, descended the stairs

where the officer turned the keys over to the chief of

police who momentarily visited the apartment after first

placing Deputy Sheriff Harrow in charge of the on the

site investigation; that Heinrichs, Christian and Harrow

returned to the apartment where an on the site investiga-

tion of the shooting took piace and physical evidence

including other guns, suspected marijuana and drugs were

found and seized.

Heinrichs was asked whether he knew “‘that this

apartment upstairs belonged to one Joseph Riley,’’ and

“You didn’t know that Joe Riley lived there.” To each

of these questions, which assumed facts not proved,

Heinrichs answered in the negative, and the chief of

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police was also asked whether he had ‘Joe Riley’s permis-

sion to enter the apartment,”’ which he also answered in

the negative.

There was no evidence whatever adduced at the

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zed articles, On this state of the

evidence the trial court overruled the motion to suppress

the seized physical evidence.

The Fourth Amendment to the Constitution of the

‘The right of the people to be secure in

their persons, houses, papers and effects,

against unreasonable searches and seizures,

shall not be violated * * * * .’’

Basic to the existence and enforcement of the

constitutional right to be secure against unreasonable

searches and seizures is the possessive, “their,” connoting

ownership, or at least the right of possession, of the

“houses, papers and effects,’’ and a person who has no

in a pre-trial hearing of a motion to suppress

evidence on the ground that it was illegally obtained the

burden of proof or the burden of persuasion as to the

matter of standing of the movant to claim the right which

he seeks to enforce is upon the movant. Compare State

Bes -

v. Kassow, 28 Ohio St. 2d 141, where in the third

paragraph of the syllabus the Supreme Court held that

upon the trial of the issues raised by a pre-trial motion to

merit. We find this independently of the possibility of

the legality of the search due to the consent of Christian

who exercised some dominion over the apartment. See

Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420. Nor do

we Pass upon its reasonableness otherwise.

Second Assignment of Error. “Denial of defendant-

appellant’s motion in limine constituted error thet

seriously prejudiced defendant-appellant in the eyes of

the jury, as it placed before them evidence of a crime for

which the defendant-appellant was not charged, and

which was neither relevant nor material to the issues at

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This assignment has reference to an oral motion .

made at the outset of trial claimed by defendant to be a

request “that the State refrain from making any reference

to the firearms in question, and that the firearms seized

from Defendant-Appellant’s home not be brought into

penmeens o he ey The defendant further asserts

were brought before the jury and remained before them

__ during the entire course of the proceedings.

ought into the presence of the jury.” The trial court

on and stated in further explanation,

icer to tell what was found. If, at the

time he concludes his testimony, if you wish to have

The transcript then reveals that the automatic and

other weapons were referred to without objection on

pages 61, 80, 81, 82, 89, 90 and 107, but it does not

appear from the transcript that they remained before

the jury during the entire course of the proceedings.

They were not offered into evidence and the usual

there was a mass of other incriminating

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Third Assignment of Error. “Denial of defendant-

appeliant’s motion to compel the state to elect between

counts 1 and 2 of the indictment was prejudicial error,

as those two (2) counts charge a single identical offense.”

Counts 1 and 2 of the indictment are identical

except that count 1 charges possession of lysergic acid

diethylamide (LSD) whereas count 2 charges the posses-

sion of marijuana (sic). The defendant claims that a con-

viction on these two counts is contrary to R.C. 2941.25

(A) and moved, at the close of all the evidence, that the

prosecution be required to elect between the two counts.

R.C., 2941.25(A) prescribes:

“Where the same conduct by defendant

can be construed to constitute two or

more allied offenses of similar import, the

indictment or information may contain

counts for all such offenses, but the

defendant may be convicted of only one.”

R.C. 2925.03(A)(6), under which each count was

lodged, prescribes:

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“(A) No person shall knowingly do any

of the following:

(6) Possess a controlled substance in an

amount equal to or exceeding three times

the bulk arount.

R.C. 2925.01, incorporating by reference R.C.

3719.01 and R.C. 3719.41, defines “controlled sub-

stances” as including ‘ysergic acid diethylamide (LSD)

and marijuana.

The Supreme Court has interpreted the application

of R.C. 2941.25(A) in Maumee v. Geiger, 45 Ohio St.

2d 238, primarily on the basis of its earlier decision in

State v. Botta, 27 Ohio St. 2d 196. it concludes that

there may not be a conviction when the two offenses,

though one offense is not included in the other, are for

philosophy that a major crime often includes as inherent

therein the component elements of other crimes.”

Notwithstanding that by the penalty provisions of

R.C. 2925.03(C) the crime of possession of LSD in an

ent conduct. It will likewise be observed that the statute

proscribes the possession of “a controlled substance,”

not the possession of “controlled substances.”

In our opinion the two offenses here charged of

which defendant was convicted do not come within the

scope of the provisions of R.C. 2941.25. This assign-

ment of error is, therefore, without merit.

Finding no error prejudicial to the defendant,

appellant herein, in any of the particulars assigned and

argued, the judgment must be affirmed.

JUDGMENT AFFIRMED.

MILLER, P.J. and COLE, J., concur.