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Media > Newsletters > Law Enforcement Bulletin > February 2015 > Search & Seizure (Warrantless Search, Locked Basement, Owner Without Key): State of Ohio v. Norman

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Search & Seizure (Warrantless Search, Locked Basement, Owner Without Key): State of Ohio v. Norman


Question: Can a property owner give consent to law enforcement to search a room or area of his home that he rents to another?  What if the property owner is on probation and is subject to home searches?

Quick Answer: When a homeowner-landlord rents out a room, he retains the right to consent to a search of common areas shared by all residents. If the owner is on probation, the warrantless probation search must be limited to the common areas the probationer is known to occupy or have joint control over.

State of Ohio v. Norman, Twelfth Appellate District, Warren County, Nov. 17, 2014

Facts: Bradley Andre was visited by two probation officers and local law enforcement after reports that Andre had violated his probation by having firearms and marijuana plants in his home.  After consent to search the home was given, the main and upper floors were searched.  Even though officers detected a strong odor of marijuana, they found none on those floors.  Officers then went to the basement door to search, but it was locked by key and a number-pad activated bolt lock.  Andre informed them that he was renting the basement to Brandyn Norman and another individual, claiming he did not have a key or know the combination.  He admitted to keeping “stuff” in the basement, including a gun safe.  During the discussion the second renter came in.  He admitted that marijuana was in the basement, but refused to give consent or open the door.  Officers eventually decided to take the door off the hinges to gain access.  Inside they found a marijuana-grow operation, seizing more than 100 plants.

Importance: When a homeowner-landlord rents out a room in his residence, he retains the right to consent to a search of the common areas shared by all residents. And where a co-tenant who is not on probation shares a residence with a probationer, the warrantless probation search of the residence must be limited to the common areas the probationer is known to occupy or have joint control over. So was the basement common?  In this case it was not, despite it being part of the home, not having a separate entrance or house number, and storage for Andre’s personal items.  Because Andre did not have a key or know the combination to the bolt lock, he had no access.  The renters had exclusive control over the basement; therefore officers, both probation and law enforcement, had to obtain their consent or a warrant to conduct the search.  Additionally, Andre’s statements that he had rented out the basement and could not open the locks to the basement door, combined with his production of a written lease and the presence of one of the co-tenants on the scene, created a reason to doubt Andre’s authority to consent to a search of the basement.  No reasonable officer under the circumstances could rely upon the consent.

Keep in mind: Officers argued that exigent circumstances existed for them to conduct a warrantless search of the basement.  To apply, there must be probable cause and a real likelihood the evidence will be moved or destroyed before a warrant can be obtained.  In this case, there was probable cause, however, based on testimony it was unlikely there was a real danger the evidence would be destroyed.  One probation officer testified, I “didn't really think that there was anyone in the basement, just for the fact that the door was locked on the outside. I just figured it was locked, so how could somebody get out if it was locked, you know, to myself, I didn't think anybody was down there.”

More on Search and Seizure of Property

First, get warrant, and second, take marijuana: You are part of a marijuana eradication team and based on aerial surveillance of a property, you receive information that marijuana is growing in the back yard of a residence that is surrounded by a fence on three sides. You knock on the door, but no one answers. You then walk to the back door, to find other officers on your team removing marijuana plants from their pots, which were in plain view in the backyard.  While in the back, you also notice a ventilation system and the odor of marijuana. Based on these facts, a search warrant is obtained, and the home is searched. You find firearms and equipment to grow marijuana. Was the seizure of the potted marijuana plants proper? The court in Littell said no. While probable cause existed for the warrant because of the aerial surveillance and plants sitting outside, there was no authority to unlawfully trespass to seize the marijuana without a warrant. Remember, plain view means you can plainly see the object, and you have a lawful right of access to the object. Because the plain view exception did not apply, there must be an exigent circumstance to enter the property. In this case, the officers provided none. The court determined the officers acted unreasonably when entering the back yard, sending this case back for further review. State v. Littell, Ninth District Court of Appeals, Summit County, Oct. 22, 2014.

Hold on…let me call your parole officer: You receive a tip of potential drug trafficking at a residence. After a few spot checks, you determine that you have no legal justification to enter the home. During surveillance, however, you do note a female coming and going from the home on several occasions and know she is on post-release control. Part of her post-release control is that her residence may be searched at any time—which is supposed to be with her mother. You obtain the rental agreement and find the female’s name on it. A call is made to the APA, who then sets up surveillance of the property to determine if the female is living there in violation of her parole. When you and the APA observe the female drive up to the house, you get out of your car and approach her on the sidewalk. The APA tells her that the “gig is up” and that he knows she is living at this residence, not with her mother. He also says the residence must be searched. You follow her and the APA into the home to find a male preparing to roll a joint—he is arrested. The male does not give consent for the house to be searched, but the female admits to violating her probation and using marijuana. The APA does a parole search and finds a firearm and controlled substances. Is the warrantless search proper? The court in Payne said yes. Based on a totality of the circumstances, there was probable cause to believe the female was in violation of her parole. At that time, the APA properly performed a search of the residence. The court also threw out the argument that the APA was acting as a “stalking horse” for a police investigation. Remember, while it is permissible for law enforcement and probation officers to work together and share information, it is not permissible to use the probation system to evade the Fourth Amendment warrant requirement in your investigations. U.S.A. v. Payne, 6th Cir., S.D. Ohio, Oct. 24, 2014.

Attention Third District: Retrieving Medical Records from Hospital:  Michael Little was involved in a single car crash and was transported to the local hospital where he admitted to consuming four beers. A blood sample was taken and sent to the police lab for testing. The hospital also took a blood sample for diagnostic purposes. Little filed a motion to suppress arguing the blood taken for the police lab was done without a warrant. After the motion was filed, the officer issued a request for hospital records to obtain the results of their blood draw under R.C. 2317.02 and 2317.022, which he received. Little filed a second motion to suppress saying R.C. 2317.02 and 2317.022 are unconstitutional and required the issuance of a warrant to obtain the results.  R.C. 2317.02(B)(2)(a) allows a health care provider to waive its privilege and share medical records showing the amount of alcohol, drugs, or controlled substances in an individual’s system when law enforcement have an official criminal investigation. The Third District has determined that while the statute allows you to obtain the confidential information, it doesn’t strip an OVI suspect of his right to privacy.  So if you work in the Third District, know that the court has said these statutes do not authorize warrantless search and seizure of patient records. State of Ohio v. Little, Third Appellate District, Auglaize County, Nov. 3, 2014.