Court of appeals upholds decision in heroin case

Ohio's Fourth District Court of Appeals has upheld a decision from Highland County Common Pleas Court, after a defendant alleged the trial court erred in allowing evidence to be admitted, claiming that it was obtained during an invalid search.

Christopher Burns filed the appeal after he pleaded no contested to a charge of heroin possession in February 2011, and the court sentenced him to "serve two years mandatory incarceration."

According to the appeal filed online this week, Burns' attorney, Daniel O'Brien, submitted three assignment of error in the appeal.

"In his first assignment of error, appellant asserts that the trial court wrongly concluded that he consented to a search of his residence because the prosecution failed to produce evidence that appellant gave written consent to search his residence. In his second assignment of error, appellant contends that the prosecution failed to prove that the document he signed authorized a search of his parents’ residence, where he lived. Appellant claims that he only agreed to a search of his “property,” which appellant contends does not include the residence that his parents owned. In his third assignment of error, appellant argues that any consent he provided was invalid because he had no choice but to consent," according to the court.

According to the judgment of the court of appeals, in 2010 Burns was placed on probation, and following a conviction of probation violation, he was placed on electronic monitoring house arrest (EMHA). As a condition of EMHA, which Burns signed, he agreed "to a search of my person, vehicle, property and residence at any time and I agree to seizure of anything found in such a search that would constitute evidence of a crime being or having been committed, or evidence of a violation of the terms and conditions of probation or the terms and conditions of the program.”

The court wrote that on July 30, 2010, probation officers visited Burns' parents’ residence, where he had been living.

"The officers observed appellant and another male on the back deck. As soon as the other person saw the officers, he quickly departed. One officer then went to the deck and found narcotics and money in a flower pot," according to the court.

Because the same evidence applies in all three assignments of error, the appellate court combined the issues, according to the judgment.

"This material reveals that (Burns) consented to a search of his residence or property. Thus, we disagree with appellant that the prosecution failed to show that he gave written consent to search," according to the judgment. "(Burns) also argues that the search was invalid because it was outside the scope of his consent. In particular, he contends that he did not consent to a search of his parents’ home. (Burns) incorrectly presumes, however, that his consent was valid only as to a residence he owned outright. The 'Conditions of Supervision' authorized a search of his “]'place of residence.'

"(Burns) did not deny that he resided at his parents’ home. Thus, his parents’ home was his 'place of residence.' Moreover, '[t]he Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is
reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained." ... Because appellant shared the premises with his parents, he had common authority to
consent to a search. Moreover, we reject appellant’s assertion that his consent was invalid because he really had no other choice,'" according to the court.

The court of appeals overruled all three assignments of error, and upheld the decision of the trial court.