COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59701 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : CHRISTOPHER BELL : : Defendant-Appellee : : DATE OF ANNOUNCEMENT FEBRUARY 6, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-243034 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: WILLIAM AILER BEVERLY J. PYLE Assistant County Prosecutor Assistant Public Defender 8th Floor Justice Center Marion Building, Room 307 1200 Ontario Street 1276 West Third Stree Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: The State of Ohio, Plaintiff-Appellant ("Appellant"), timely appeals the granting of a motion to suppress evidence by the trial court. For the reasons set forth below, we affirm. On or about August 15, 1989, the Federal Bureau of Investi- gation executed an arrest warrant at 10703 Massie, in Cleveland, Ohio. The arrest warrant was issued for a Christopher Pore, in connection with a bank robbery and interstate flight. Special Agent Robert Friedman testified at the evidentiary hearing on behalf of Appellant. He testified that he, along with several other agents, went to 10703 Massie to arrest Christopher Pore. Special Agent Friedman offered several views or informa- tion on how he knew of Christopher Pore's whereabouts. Initially, he testified that Christopher Pore was living at l0703 Massie. Later he testified that he received information from an informant that Christopher Pore was there at the house. Lastly, Special Agent Friedman testified that the informant information was that he was in the area of East 105th Street and St. Clair Avenue. His partner gave a picture of Pore to his informant who "came back with the information about Massie Avenue". The FBI arrived at the residence, and Agent Friedman knocked on the door of a single family residence, which fact was readily identified from the outside of the house. A woman came to the door, and he identified himself and his mission. The woman initially refused to open the door, but eventually opened the -3- door after she was told that they would use force. Agent Friedman showed her a photograph, and the woman stated that she did not know the person in the photo. At this point, there is ambiguity in the record as to what happened next. Agent Friedman testified that he then asked her if she knew Christopher Pore and she pointed upstairs. Ruth Taylor, the woman at the door, testified that she did not hear the last name. She testified that she only heard the name Christopher and pointed upstairs because Christopher Bell lived upstairs. It was not until this gesture that the agents realized that the house was a single family home that was converted to a two family. The agents proceeded upstairs, knocked and announced themselves. When they did not receive a response, they forced the door open and entered into the living room. The agents observed in plain view on the living room table suspected narcotics and drug paraphernalia. Agent Friedman testified that he did not stop in the living room, but proceeded into the bedroom where he discovered a male and female in bed. Agent Friedman further testified that he observed numerous articles of clothing and weapons on the floor in the bedroom. After some discussion between the agents and comparison of the photo, it was determined that the male in bed was not the subject of the arrest warrant, Christopher Pore. The agents then moved the weapons out of the bedroom to check and see if they were stolen and for safety reasons. -4- Agent Friedman decided to call the Cleveland Police at this point, since the male was not Pore. In about ten minutes, the Cleveland Police arrived at the residence. Agent Friedman explained the circumstances to the Cleveland Police, who entered the upstairs dwelling without any type of a warrant and arrested the male and female in connection with violations of state drug law and other violations pertaining to the weapons. Christopher Bell, Defendant-Appellee ("Appellee"), was indicted on both October 25, 1989 and December 14, 1989 for various counts of drug law violations, weapons violations, and receiving stolen property. On March 27, 1990, an evidentiary hearing was conducted in response to Appellee's motion to suppress. The trial court granted the motion on April 12, 1990 after oral arguments by counsel. Appellant states as its only assigned error: WHETHER THE MOTION TO SUPPRESS SHOULD HAVE BEEN DENIED. The issue arising from this appeal is whether, under the Fourth Amendment, a law enforcement officer may legally search for the subject of an arrest warrant in the home of a third party without first obtaining a search warrant. The United States Supreme Court case of Steagald v. United States (1981), 451 U.S. 204 established the rule of law that should be applied in this case. The factual similarities between the instant case and Steagald are noteworthy. -5- DEA agents, in Steagald, went to petitioner's residence with an arrest warrant for one Ricky Lyons. The agents were acting on information obtained from a confidential informant. Initially, the informant merely suggested to the federal agent that he might be able to locate Lyons. During the second phone call, the informant provided the agent with a phone number in the Atlanta, Georgia area where according to the informant Lyons could be reached for the next twenty-four hours. After contacting the Atlanta office of the DEA, the federal agents were able to match the phone number with the residence of petitioner. The agents went to petitioner's residence, with a six month old arrest warrant, to search for Lyons. They did not, however, obtain a search warrant for petitioner's residence. In the cause of searching the home, the agents found cocaine and other contraband but they did not find Lyons. The petitioner was arrested and indicted on federal drug charges. In response to the question of whether petitioner's motion to suppress should have been granted, the United States Supreme Court held at 216: In sum, two distinct interests were implicated by the search at issue here -- Ricky Lyons' interest in being free from an unreasonable seizure and petitioner's interest in being free from an unreasonable search of his home. Because the arrest warrant for Lyons addressed only the former interest, the search of petitioner's home was no more reasonable from petitioner's perspective than it would have been if conducted in the absence of any warrant. Since warrantless searches of a home are impermissible absent consent or exigent circumstances, we conclude that the instant search violated the Fourth Amendment. -6- The threshold question, in the application of this rule to the instant case, is whether the FBI agents had an honest belief that Christopher Pore lived at 10703 Massie or was a guest in the home of a third party. It is Appellant's position that the FBI agents reasonably believed that Pore lived at 10703 Massie. Having reviewed the testimony, this court is not inclined to accept Appellant's proposition that the answer is so clear cut. The testimony from Special Agent Friedman is ambiguous on this determinative issue. Initially, he testified that "my partner had information from an informant that one Christopher *** one Christopher Pore was living there *** so we went there and attempted to arrest him." On cross-examination, Special Agent Friedman testified in the following exchange: Q. Now, how did you get the information that the person in the picture was staying at that house at 10703 Massie? A. Like I said, a fellow agent got informant information that he was there. Agent Friedman further testified in the following exchange: THE WITNESS: One of Christopher Pore's co-defendants in the robbery, whose name was Ricky Johnson, and he cooperated with the government and testified in trial. His wife, Flo Johnson, also was aware of bank robberies. She knew they were looking for Christopher -7- Pore and she told him that she heard he was in the East 105th area and St. Clair area. BY MR. AILER: Q. Based upon that, you did what? A. I asked my partner to give a picture to his informant and ask him to go to this area to see if he could find Christopher Pore. Q. And the result? A. He came back with that information about Massie Avenue. Because of the ambiguity in this testimony as to whether the agents believed that Christopher Pore was merely staying at the residence of a third party or actually living at 10703 Massie himself, we are compelled to give deference to the trier of fact in his apparent conclusion that the FBI knew or had reason to know that this was the home of a third party. Clearly, this interpretation necessitates that the decision be affirmed pursuant to Steagald, supra. Because the arrest warrant for Pore only addressed his constitutional interest in being free from unreasonable seizure and not Bell's interest in being free from unreasonable searches of his home, the search of Bell's home was no more reasonable from his perspective than it would have been if conducted in the absence of any warrant. Therefore, the search was violative of the Fourth Amendment. Judgment affirmed. -8- It is ordered that Appellee recover of Appellant his 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. PATTON, P.J., and HARPER, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. .