COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59127 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION GERALD A. LEWIS : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 3, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-226831 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor FEDELE DeSANTIS, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: DAVID L. DOUGHTEN 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 - 2 - KRUPANSKY, C.J.: Defendant Gerald Lewis a/k/a John Lewis was indicted on one count of having a weapon while under disability in violation of R.C. 2923.13 with an accompanying gun specification and three violence specifications. According to police testimony, defendant was arrested April 1, 1988 during the late evening hours on outstanding traffic warrants and a charge of criminal damaging after an altercation at the Trivia Lounge. Ray Sadd, the owner of the bar, called the Parma police department stating that defendant was intoxicated, splintered the front door of the bar after storming out, and reported another patron observed a shotgun in defendant's house after giving him a ride home. Five or six uniformed police officers responded to the house defendant shared with his girlfriend, Paula Tesar, at 3013 North Avenue. The reason for the number of police responding was due to the information the police possessed regarding the gun. Officer Cornachio knocked on the front door. Defendant responded and was arrested. Defendant contradicted police testimony that he permitted two officers to enter the house to make the arrest while the others remained outside. At one point during his testimony, defendant stated the police never entered his house and he voluntarily accompanied them to the police station. - 3 - However the police testified further that once inside, Officers Hooley and Kochta observed the butt of a shotgun under the couch where defendant had been sitting and within five to ten feet of defendant at the time of his arrest. Officer Hooley unloaded the weapon, wrote down the serial number and returned the weapon and the single shotgun shell from the chamber to the place where he had found them. The gun and the ammunition were not removed from the premises. A routine computer check at the police station after the arrest revealed defendant had three prior violent felony convictions, viz., one prior offense for having a weapon under disability and two separate offenses of carrying concealed weapons. These offenses served as the predicate for the disability sub judice. Thereafter, Officer Cornachio called Paula Tesar at the Trivia Lounge where she was employed to request consent to search the house she shared with defendant. Tesar and Sadd drove to Tesar's house where Tesar read and signed a consent form after it had been explained to her and Sadd witnessed her signature. Officer Compton, who had not been present but knew of the prior arrest, thereafter immediately retrieved the shotgun and ammunition from the area near the couch. Subsequent tests revealed the weapon was fully operable. The trial court denied defendant's motion to suppress the shotgun and shell after conducting a hearing and admitted the - 4 - evidence over defendant's objection at trial. Tesar testified the gun was not hers and she had seen defendant in possession of such a weapon. Defendant admitted to having carried the shotgun within the house on one occasion, but maintained he received it from a man named "Dale" for the purpose of returning it to his friend Paul Gnall after a deer hunting trip five months before in Pennsylvania. Gnall's wife testified in rebuttal that her late husband never owned the shotgun and her records of his gun collection made no mention of this weapon. Defendant was found guilty by the jury of having a weapon under disability and accompanying gun specification. Defendant was sentenced to a term of two to five years imprisonment, with three years concurrent actual incarceration for the gun specification. Defendant filed this delayed appeal pursuant to App. R. 5(A) and Local App. R. 21 and assigned the following error: THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE CONFISCATED DURING A WARRANTLESS SEARCH. Defendant's sole assignment of error is without merit. Defendant objects to the warrantless search which led to the recovery of the shotgun and ammunition introduced at trial. Defendant maintains the warrantless arrest for misdemeanor criminal damaging at his house was unlawful and the items obtained from the premises thereafter with the assistance and - 5 - consent of his girlfriend should have been suppressed as a product of that unlawful arrest. As noted above, the removal of defendant from the premises involved conflicting testimony. The police stated they arrested defendant on outstanding traffic warrants and for criminal damaging. At one point defendant stated he went with the police voluntarily to the police station for questioning and the police never entered the premises. The police testified to the contrary that defendant consented to have them enter the house. However, defendant claimed the police did not enter until after he had exited the house to go with them. The evidence, however, is clear the shotgun was not removed from the premises at this juncture. The seizure of the weapon was affected only after the police had obtained consent to search from Paula Tesar, the owner and co-resident of the premises. The principles governing the validity and effectiveness of third-party consent to a warrantless search are well settled and require no extended discussion. An owner and co-resident may consent to a search of the common areas of a joint residence notwithstanding defendant's objection and absence in police custody. State v. Greer (1988), 39 Ohio St. 3d 236, 240, cert. denied, 109 S.Ct. 1766 (1989) (citing Schneckloth v. Bustamonte (1973), 412 U.S. 218 and United States v. Matlock (1974), 415 U.S. 164). - 6 - The testimony at the suppression hearing described above amply supports the trial court's finding that Tesar knowingly, voluntarily, and intelligently consented to the search of her house and the seizure of the weapon. Tesar identified the weapon and further testified she saw defendant with it over the course of a couple months before that evening and did not like guns in her house. It was well within the province of the trial court to discount defendant's testimony in favor of that offered by the state. The record, including defendant's own sometimes conflicting testimony, convincingly demonstrates defendant had second thoughts about permitting the police to enter the premises after they saw the weapon in open view. The officers openly declared their purpose, defendant agreed to leave with them, and there is absolutely no evidence that the officers used physical force or deceived defendant in any way to gain entry. Under these circumstances, the evidence observed thereafter was not "tainted" and suppression was therefore unwarranted. See, State v. Perkins (1985), 18 Ohio St. 3d 193; State v. VanNewhouse (1987), 41 Ohio App. 3d 191. Defendant's motion to suppress was unfounded even without this evidence of his consent or lack thereof to enter the premises. The California Supreme Court persuasively rejected the claim that the independent consent of a co-resident was invalidated by a prior violation of the defendant's Fourth - 7 - Amendment rights. People v. Boyer (1989), 768 P.2d 610, 625-626. The court concluded evidence of a knife and bloody pants in a murder trial should not be suppressed despite the fact the officers conducting the search of defendant's residence with his girlfriend's consent had been alerted to the items by the defendant during an unlawful custodial interrogation indicating their relevance and location. The court reasoned the search was supported by sufficient independent consent regardless of defendant's claims the evidence was tainted by the violation of his constitutional rights. Id. at 625-626. Because defendant was unable to show his girlfriend's consent was itself tainted by the improper police conduct toward defendant, the evidence should be admitted. Id. (Emphasis in original). As in the case sub judice, there was no evidence that the request for consent to search was motivated in any way by any alleged prior breach of defendant's Fourth Amendment rights. The trial court recognized that the police knew the existence and general location of the weapon in the residence, before defendant's arrest and the alleged search, from the patron who had given defendant a ride home./1\ Viewing the weapon at the /1\ The trial court stated: "*** [T]he bottom line is, they placed this gentleman under arrest and they knew there was a gun somewhere in the house, at least they had information to that affect, and they did a record check and found that he had offenses that would place him under a disability, and could have gotten a warrant, or they could have gotten a consent. They took the easier way, they went back to the owner of the house and got the consent." - 8 - initial encounter with the defendant did not make the crime immediately apparent since the police did not know of defendant's disability and the weapon was not seized at that time. It was not until the computer search revealed the predicate for defendant's disability that the significance of the initial report of the shotgun arose. Defendant argues that third party consent does not retroactively cure an improper prior search. We agree. However, defendant ignores the fact that reliable prior independent knowledge provided by a private citizen does not become "tainted" by any alleged subsequent misconduct. See, People v. Gleeson (N.Y. App. Div. 1974); State v. O'Bremski (Wash. 1967), 423 P.2d 530; see also State v. Henry (1981), 1 Ohio App. 3d 126 (motel maid delivered items to the police). The exclusionary rule merely puts "the police in the same, not a worse, position that they would have been in if no police error or misconduct occurred." Nix v. Williams (1984), 467 U.S. 431, 443 (Emphasis in original). The record supports the trial court's conclusion the police obtained nothing more than the serial number of the weapon during the initial encounter with defendant and therefore the police had sufficient probable cause to obtain a warrant after discovering defendant's disability without regard to any information from the alleged search. There is no support in the record for defendant's claim the subsequent consensual search was - 9 - prompted by anything discovered when making the arrest for the prior offense. Accordingly, defendant's sole assignment of error is without merit and overruled. Judgment affirmed. - 10 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANCIS E. SWEENEY, J., and SPELLACY, J., CONCUR CHIEF JUSTICE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .