COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67529 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION NICOLE MEYER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION MAY 25, 1995 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-302867 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES JOHN P. PARKER, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue SHERRY F. McCREARY, Assistant Cleveland, Ohio 44103 Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, P.J., Defendant-appellant Nicole Meyer appeals from her conviction on a no contest plea for drug trafficking (R.C. 2925.03) and possession of criminal tools (R.C. 2923.24). Defendant assigns error in the trial court's failure to suppress contraband found by the police in a warrantless search of her room in her mother's home. We find no error in the court's ruling and affirm for the reasons hereinafter stated. On August 27, 1993, two experienced narcotics detectives were investigating complaints of drug activity between East 114th and East 117th Street off St. Clair Avenue in Cleveland. On the previous day, the detectives, through an informant, learned that Michael Matthews was involved in a homicide that occurred at East 117th and Sellers Road. The detectives were familiar with Mr. Matthews, having arrested him a year prior. The informant supplied Matthews' name and gave an address of 553 East 114th Street. The informant pointed out the house to the narcotics detectives. The detectives notified the Homicide Division who confirmed the informant's tip. Homicide supplied the narcotics detectives with a photograph of Matthews and instructed that he was to be apprehended on sight. According to the officers, in the area of East 114th and St. Clair, Michael Matthews rode up behind their car on a bicycle. They immediately recognized him, arrested and placed him in the car while they called the Homicide Unit to advise them of what had - 3 - happened and arrange transport of the suspect. At that point, defendant arrived on the scene and asked why her boyfriend (Matthews) was in the car. Defendant became "irate" and "sort of belligerent" toward the officers when they explained Matthews was under arrest. She responded that he had just left her house and that he had not done anything. She then turned around and began quickly walking back toward her house. The officers already had information that Matthews stayed in the area. Since defendant knew he was in police custody, the officers were concerned that if there was any evidence pertaining to the homicide located in his house, defendant might destroy it. Consequently, they drove to the Meyer residence at 553 E. 114th Street where defendant lived with her mother. Defendant's mother, Linda Meyer, answered the door. She informed the officers that she lived there and that Matthews stayed there with her daughter, the defendant, and their child. Ms. Meyer also told the officers she was the lessee of the apartment, she paid the rent, paid the household bills and watched the grandchildren. The officers asked Ms. Meyer if she would consent to a search of the house and presented her with a standard consent- to-search form. They read the form to her and explained her rights which she said she understood. The officers testified that Ms. Meyer reviewed the form, she agreed to it and signed the front, giving her consent. - 4 - The detectives characterized the situation with Ms. Meyer as being "quite organized." She was "calm" and "cooperative," and did not seem at all surprised by their presence and inquiry about Matthews. She appeared "relieved" that the matter was being addressed. The detectives claimed they did not have their guns drawn while talking with Ms. Meyer and there was never a need to yell at her. The detectives explained to Ms. Meyer that if contraband were found in the house, the final determination whether she would be charged would be made by the Grand Jury. They did not tell her that if she signed the consent form she would not be charged. The officers said there were no threats or promises made, nor coercion required to persuade her to sign the consent form. Also present in the room when Ms. Meyer signed the consent form was one of her adult daughters and two or three grandchildren. Defendant arrived home approximately four to five minutes after her mother signed the consent-to-search form. After defendant arrived home, the atmosphere in the house changed. Defendant "admonished" her mother for signing the form, saying something to the effect, "Mama, why did you sign that?" She repeatedly told the officers that they could not search her room. Although Ms. Meyer had been advised that she could stop the search at any time, according to the officers, she made no attempt to do so. As the detectives started upstairs, defendant became "belligerent" and "obnoxious" and started screaming: "You have no right to come up here." She was escorted downstairs by the - 5 - officers where she was detained by two officers while the two detectives proceeded upstairs and searched the area. They entered defendant's upstairs bedroom, the door to which was open and unlocked. They searched a dresser and found two plastic bags containing 60 rocks of crack cocaine, $100 in U.S. currency, personal papers, and miscellaneous live ammunition, which they related to the homicide investigation. After the search was completed and articles seized were shown to her, Ms. Meyer signed the inventory section on the back of the consent form. Linda Meyer's testimony differed significantly from that of the police. She lived at the 553 East 114th Street address with her daughters, Nicole (defendant herein) and Mary Louise, her son, Roger, and her two granddaughters. Defendant's bedroom and the bedrooms of Mary, Roger, and a bathroom were on the second floor. Because of her "bad back" Ms. Meyer slept on the first floor. There was a door on defendant's bedroom, but no lock on the door. The only bathroom in the house was located on the second floor. Defendant's mother testified that she was in her living room with her grandchildren when the police arrived with guns drawn. They told her they were looking for a .22 caliber pistol and asked her if they could look around, to which she agreed. Then defendant came home, went upstairs and told the officers to get out of her room. The officers again asked Ms. Meyer whether defendant paid rent and were told she did not. Up to that point, Ms. Meyer testified she had not been shown nor signed any consent form. When - 6 - the search was over, the officers returned to the living room with the crack cocaine and, for the first time, gave her the consent form to sign. They told her she would not be charged with anything they took out of the house if she signed it. Ms. Meyer described the tone of the search as "very aggressive" and that the officers "destroyed" her house. Ms. Meyer could only recall signing the inventory (reverse side) of the consent form prior to it being filled out by the officers. She either did not sign or could not recall signing the front side. She claimed the signatures on the front side of the form did not even appear to be hers. Because of all the commotion, she could not recall ever signing the front of the consent form. She was "scared to death" while the police were there and took nitro for her chest pains. She said that defendant was already in handcuffs when the consent form was signed. Ms. Meyer admitted that at no time did she tell the officers to stop searching and claims she was never told she could stop the search. Defendant did not testify at the hearing. At the close of the suppression hearing, the court ordered a handwriting analysis to determine whether Ms. Meyer's signature was on the consent form. The result of the analysis by the Scientific Investigation Unit of the Police Department proved conclusively that the signature on the front of the consent form was that of Linda Meyer. The defense did not submit a report on the signatures. - 7 - The trial court found most of the testimony of Linda Meyer to be "absolutely incredible." The court also found no probative evidence to contradict the testimony of the officers that Ms. Meyer voluntarily and knowingly signed the consent form. The court overruled the motion to suppress. The trial court resolved the diffeence in testimony in favor of the State. We will address the defendant's assignments of error in the order asserted. I. THE ILLEGAL CUSTODIAL DETENTION OF MICHAEL MATTHEWS FATALLY TAINTED THE CONSENT GIVEN BY MS. MEYERS [SIC] AND THE EVIDENCE SEIZED WAS DERIVED FROM FRUIT OF THE POISONOUS TREE IN VIOLATION OF THE FOURTH AMENDMENT OF THE U.S. CONSTITUTION AND ART. I, SECTION 14 OF THE OHIO CONSTITUTION. Defendant claims that the State's warrantless seizure of contraband resulted from their original apprehension and "illegal arrest" of Michael Matthews. In other words, but for the illegal arrest of Matthews, they would not have had occasion to pursue their search of the Meyer's residence where he was staying. Accordingly, defendant argues that the contraband seized is the fruit of the poisonous tree and should have been suppressed. It is well-settled that a police officer may arrest a felony suspect without a warrant where there are reasonable grounds for making the arrest. United States v. Watson (1976), 423 U.S. 411; United States v. Santana (1976), 427 U.S. 38; State v. Terry (July 23, 1992), Cuyahoga App. No. 60356, unreported. - 8 - The scope of our review on a motion to suppress was recently set forth by this Court in State v. Curry (1994), 95 Ohio App.3d 93, 96: In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility. State v. Clay (1973), 34 Ohio St.2d 250, 63 O.O.2d 391, 298 N.E.2d 137. A reviewing court is bound to accept those findings of fact if supported by competent, credible evidence. See State v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54. However, without deference to the trial court's conclusion, it must be determined independently whether, as a matter of law, the facts meet the appropriate legal standard. State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906, 908. The circumstances surrounding the arrest are to be viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold. State v. Wade (1978), 53 Ohio St.2d 182, 189. In the present case, the State does not contest the fact that Michael Matthews was arrested on August 27, 1993. He was handcuffed, read his rights and placed in the back seat of the unmarked police vehicle. They testified that the arrest was based on the informant's tip which was corroborated by the Homicide Division. Michael Matthews was a suspect in a fatal shooting involving a drug transaction. A warrantless arrest is constitutionally valid if, at the time of the arrest, the facts and circumstances within the officer's knowledge were sufficient to warrant a prudent person to believe - 9 - that the suspect had committed an offense. Beck v. Ohio (1964), 379 U.S. 89, 91. Probable cause for a warrantless arrest exists when the officer has sufficient information, from his own knowledge or a reliable source, to merit a reasonable belief that the accused has committed a felony. State v. Timson (1974), 38 Ohio St.2d 122, 127; State v. Morris (1988), 48 Ohio App.3d 137; State v. Sanchez (June 9, 1994), Cuyahoga App. No. 62797, unreported. Defendant argues that Mr. Matthews, to this day, has not been charged with the homicide. A warrantless arrest, however, does not require the officer's absolute knowledge that a crime has been committed, it requires only a reasonable belief based on the totality of the circumstances. State v. Timson, supra. Probable cause is a pliant common sense standard that requires only a showing that a probability, rather than an actual showing, of criminal activity existed. Texas v. Brown (1983), 460 U.S. 730, 732; Illinois v. Gates (1983), 462 U.S. 212, 213. The evidence below portrayed the following circumstances: the narcotics detectives were on patrol in a high drug area investigating complaints; they had been alerted by Homicide to be on the lookout for a murder suspect, Michael Matthews; they had his picture on their dashboard and a known address; they were familiar with Matthews from a previous arrest; Matthews came riding up on his bicycle; the detectives recognized him and took him into custody; his girlfriend, the defendant, protested his arrest at the scene; the detectives went to the girlfriend's house to see if they - 10 - could find any evidence linking Matthews to the murder; they feared that defendant was capable of destroying relevant evidence. On the basis of the detectives' testimony and the totality of the circumstances, there were sufficient articulable facts to justify taking the defendant into custody. State v. Timson, supra; State v. Fardon (1984), 22 Ohio App.3d 31, 36; State v. Terry (July 23, 1992), Cuyahoga App. No. 60356, unreported. That action led the detectives to the front door of the defendant's home where she lived with Matthews. We find nothing illegal about the arrest of Matthews nor the process by which the detectives showed up at the Meyer's home. This assignment of error is overruled. II. THE MOTHER OF THE APPELLANT DID NOT GIVE VOLUNTARY CONSENT TO ALLOW A SEARCH OF HER RESIDENCE AND THE SEARCH VIOLATED THE FOURTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I, SEC., 14 OF THE OHIO CONSTITUTION. It is well settled that a warrantless search is per se unreasonable and violates the Fourth and Fourteenth Amendments to the United States Constitution unless it is conducted pursuant to a valid consent which is a specific exception to both the warrant and the probable cause requirements. Schneckloth v. Bustamonte (1973), 412 U.S. 218; Katz v. United States (1967), 389 U.S. 347; State v. Sneed (1992), 63 Ohio St.3d 3, 7; Columbus v. I.O.R.M. Sioux Tribe- Redmon Club (1993), 88 Ohio App.3d 215, 217. Ohio law recognizes that parents who own or control the family residence may consent to a search of those premises. State v. - 11 - McCarthy (1971), 26 Ohio St.2d 87, 92; State v. Carder (1966), 9 Ohio St.2d 1, 10; State v. Jaraucaro (Jan. 17, 1980), Cuyahoga App. No. 40270/40271, unreported. The consent of the parent eliminates the need for a search warrant or probable cause. Defendant contends that the consent given by Linda Meyer, defendant's mother, to search the subject premises was not voluntarily given and was therefore an invalid search and seizure under the Fourth Amendment. The voluntariness of a consent is a question of fact which must be determined by the totality of the circumstances. State v. McMillan (1993), 91 Ohio App.3d 1, 5; State v. Hickson (1990), 69 Ohio App.3d 278, 280; State v. Danby (1983), 11 Ohio App.3d 38; Schneckloth, supra. Both detectives testified that Linda Meyer was advised that Michael Matthews had been arrested in connection with a homicide investigation and they were looking for evidence connected with the homicide. They asked her to consent to a search of her home; the consent to search form was explained to her; she reviewed it and she signed it in two places, on the front prior to the search and once on the back acknowledging the inventory. The officers described the atmosphere surrounding the prior consent as "congenial," "cooperative," and "calm." According to the officers, no guns were ever drawn, no threats were made and there was never any need to yell at Ms. Meyer. Although the mother's testimony contradicted the officers as to when she signed the consent form, a handwriting analysis confirmed that she signed the front side of - 12 - the form. Otherwise, the trial court found the mother's testimony "absolutely incredible." In Illinois v. Rodriguez (1990), 497 U.S. 177, the United States Supreme Court held that a warrantless entry is valid when based upon the consent of a third party whom the police at the time of entry reasonably believe to possess common authority over the premises, even if the third-party does not have such authority. Here the police reasonably believed that the mother had authority over the whole premises, because she paid the rent and bills for the property and gave the consent to the search. This Court has recognized that one who has given consent to a search has a right to retract or limit that consent even after the search has begun. State v. Rojas (1993), 92 Ohio App.3d 336. The mother had every opportunity to retract her consent, but did not do so. Once she saw that her daughter was vehemently objecting to the police going upstairs or after her daughter admonished her for signing the consent form she could have stopped the search at that point, as the detectives had previously advised her. The evidence shows that Ms. Meyer did not object to the search continuing or otherwise indicate that her consent was withdrawn. See, also, State v. Shaw (Jan. 26, 1989), Cuyahoga App. No. 54978, unreported; State v. Washington (Dec. 24, 1987), Cuyahoga App. No. 53270, unreported. The totality of the circumstances herein lead to the conclusion that there was sufficient evidence to sustain the trial - 13 - court's finding that the mother's consent was voluntarily given and not withdrawn. This assignment of error is overruled. III. THE POLICE EXCEEDED THE SCOPE OF THE CONSENT GIVEN BY MS. MEYERS [SIC] IN SEARCHING THE BEDROOM AND DRESSER DRAWERS OF THE APPELLANT WHEN MS. MEYERS [SIC] HAD NO MUTUAL USE OF THE APPELLANT'S BEDROOM AND DRESSER IN VIOLATION OF UNITED STATES V. MATLOCK (1974), 415 U.S. 164. It is undisputed that consent to a warrantless search may be given by a third party who has common authority over or other sufficient relationship to the premises to be searched. State v. Chapman (1994), 97 Ohio App.3d 687; United States v. Matlock (1974), 415 U.S. 164, 94 S.Ct. 988; State v. Snead, supra. A parent who owns or has a right to control the premises wherein a child resides may consent to a search of these premises although the search may produce incriminating evidence against the child. State v. Chapman, supra; State v. McCarthy (1971), 26 Ohio St.2d 87, 92; State v. Carder (1966), 9 Ohio St.2d 1, 10; State v. Gavin (1977), 51 Ohio App.2d 49, 55. This case involves a situation where defendant, two of her siblings, and two infant children lived at home with their mother. There was sufficient evidence that Linda Meyer controlled those premises. She was the leaseholder, she paid the rent, and she paid the bills. Although defendant used the bedroom upstairs with her boyfriend, there was no evidence that she had exclusive interest in or use of the bedroom. The boyfriend did not live at the address, but only stayed there periodically. There was no lock on the door - 14 - and there was no evidence presented that the mother was restricted from entering the room. The bedroom door was open when the detectives entered. There was sufficient evidence to find Linda Meyer, the head of the household, had access to that bedroom and ability to consent to a search thereof. Even assuming arguendo that Linda Meyer did not have actual authority to consent to a search of defendant's bedroom, the search is valid under Illinois v. Rodriguez (1990), 497 U.S. 177, 110 S.Ct. 2793. In that case, the Supreme Court held that a warrantless entry is valid when based on the consent of a third party whom the police reasonably believe, at the time of entry, has common authority over the premises, but who, in fact does not have that authority. It is clear that under the circumstance in this case, the officers conducting the search had reason to believe that Ms. Meyer had complete authority to consent to a search of her own home. She paid the rent, she paid the bills, and she had three children and two grandchildren living in the house. Ms. Meyer gave a general consent to a search of the premises and she at no time attempted to limit the scope of that consent. Because the police were looking for evidence pertaining to a homicide, i.e., guns, bullets, etc., it was not unreasonable for them to search the bedroom and the dresser drawers in the bedroom where the suspect Matthews sometimes stayed. We find the recent case of State v. Chapman (1994), 97 Ohio App.3d 687, to be persuasive. There the father's consent to the search led to the - 15 - discovery of incriminating evidence leading to the son's conviction. The court stated at 91-92: As to the voluntariness of the consent to search, the form which Chapman signed clearly states that he had the right to refuse to consent to a search. This is, of course, only one factor for the court to consider. Whether consent to search is voluntary is a question of fact to be determined from the totality of the circumstances. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854; State v. Posey (1988), 40 Ohio St.3d 420, 427, 534 N.E.2d 61, 67, certiorari denied (1989), 492 U.S. 907, 109 S.Ct. 3217, 106 L.Ed.2d 567; State v. Jones (June 29, 1994), Hamilton App. Nos. C-930300 and C-930301, unreported, 1994 WL 287728. The trial court heard conflicting testimony on this subject from Chapman and the police officers and decided that based on the totality of the circumstances the consent was voluntarily given. Matters of weight and credibility are for the trier of fact, including at suppression hearings. State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus; State v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR 57, 57-58, 437 N.E.2d 583, 584. We cannot say that this determination was contrary to law or against the weight of the evidence. For similar reasons appellant's argument that his father did not have authority to consent to a search of his room must fail. While Chapman told the court that his son paid rent to him and had a separate room with a lock, the police testified that Chapman told them that appellant did not pay rent and that they recalled no locks on appellant's door. We will not disturb the trial court's decision to believe the police officers. Conflicts in the evidence are for the trier of fact to resolve. State v. DeHass, supra. Thus appellant's first assignment of error is overruled. See, also, State v. Pless (Sept. 29, 1994), Cuyahoga App. No. 63477, unreported, where this Court held that the search of a son's - 16 - dresser drawer was lawful following consent from the father to search the room. The court in Pless did not find that the search of the drawer exceeded the scope of the consensual search. Further, in State v. Piccus (March 17, 1988), Cuyahoga App. No. 53605, unreported, the court held that the fact that a gun which was seized was not in plain view does not render the search improper. Assignment of Error III is overruled. Judgment affirmed. - 17 - 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 Court of Common Pleas 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. DYKE, J., and O'DONNELL, J., CONCUR. JAMES M. PORTER 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 .