COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59897 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION HOWARD MABEL, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 27, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-247,214 JUDGMENT : REVERSED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Justice Center 1200 Ontario Street Cleveland, Ohio 44114 For defendant-appellant: Thomas E. Frye David A. Lawrence 580 East 200th Street Euclid, Ohio 44119 -2- NAHRA, P.J.: Howard Mabel appeals from the trial court's denial of his motion to suppress evidence. For the reasons set forth below, we reverse. Mabel checked into Room 248 of the Charter House Inn in Euclid, Ohio on June 28, 1989. The Inn's records showed that Mabel paid for one night at that time. On June 29th, the hotel maid was instructed to clean Mabel's room as a check-out. However, Mable paid for a second night on the 29th. When the hotel maid entered Mabel's room to clean it on June 29th, she discovered drug paraphernalia, including a propane torch and various glass pipes, in plain view on a table in front of the window. The maid notified the head housekeeper, and the hotel contacted police. According to Robert Carney of the Euclid Police Department, the Charter House Inn called police at about 3:00 p.m. on June 29th. Carney went directly to Room 248 and met the hotel maid. She unlocked the door for Carney who seized the drug paraphernalia. Mabel was subsequently indicted for possession of cocaine and criminal tools. He filed a motion to suppress the items seized from the hotel room. The trial court denied the motion. Mabel pleaded no contest to the charges, was sentenced, and timely appealed the denial of his motion to suppress. Appellant's two assignments of error assert that the court should have granted his motion to suppress because the search of -3- his hotel room was unconstitutional, and will be addressed together./1\ Both the United States and Ohio constitutions proscribe unreasonable searches, and require warrants. One exception to the warrant requirement is a search conducted by consent. Schneckloth v. Bustamonte (1973), 412 U.S. 218. To establish consent, the prosecution must show that permission was obtained from a party who possessed a sufficient relationship to the premises. U.S. v. Matlock (1974), 415 U.S. 164. In Illinois v. Rodriguez (1990), U.S. , 110 S. Ct. 2793, the Supreme Court held that a warrantless entry is valid where police make a reasonable factual determination that the consenting party had authority over the premises, quoting Terry v. Ohio (1968), 392 U.S. 1. The Supreme Court has allowed hotel room searches upon consent of the hotel where the guest has abandoned the premises, Abel v. U.S. (1960), 362 U.S. 217, 241, but not where the guest is still occupying the room and the police had no basis to /1\ Appellant's assignments of error read in full as follows: FIRST ASSIGNMENT OF ERROR THE COURT COMMITTED PREJUDICIAL ERROR IN OVERRULING DEFENDANT-APPELLANT'S MOTION TO SUPPRESS THE EVIDENCE. SECOND ASSIGNMENT OF ERROR THE SEARCH OF DEFENDANT-APPELLANT'S MOTEL ROOM ON JUNE 29, 1990, VIOLATED DEFENDANT'S FOURTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE U.S. CONSTITUTION AND SIMILAR RIGHTS AS EVIDENCED IN THE OHIO CONSTITUTION. -4- believe that the guest consented to the search. Stoner v. California (1964), 376 U.S. 483. In State v. Miller (Sept. 12, 1991), Cuyahoga App. No. 58492, unreported, this court held that police officers must ascertain the rental status of a hotel room before conducting a warrantless hotel room search. In this case, officer Carney did not determine the rental status of the room prior to searching it. However, the motel billing statement reflected that appellant paid for two nights and appellant had not vacated the room. Testimony indicated that appellant could have paid prior to the search, and that his personal effects were still in the room. As a holdover guest, appellant had an expectation of privacy in the room such that this search violated his Fourth Amendment rights. Appellant's motion to suppress should have been granted. Accordingly, we sustain his assignments of error and reverse the trial court's judgment. -5- This cause is reversed for proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, J., and *CORRIGAN, J., CONCUR. (*SITTING BY ASSIGNMENT: Judge John V. Corrigan, Retired, Eighth District Court of Appeals.) JOSEPH J. NAHRA PRESIDING 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .