COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73074 STATE OF OHIO : : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION JAMES B. FAIA : : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-348327. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Daniel M. Margolis, Esq. Assistant County Prosecutor Justice Center - Courts Tower 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellee: Mark B. Marein, Esq. Steven L. Bradley, Esq. 222 Leader Building 526 Superior Avenue Cleveland, OH 44114 -2- TIMOTHY E. McMONAGLE, J.: Plaintiff-appellant, State of Ohio ( State ), appeals the judgment of the Cuyahoga County Court of Common Pleas, which granted the motion to suppress of defendant-appellee, James B. Faia ( appellee ), on the basis that the warrantless search was not consensual nor premised on exigent circumstances. The record reflects that on January 3, 1997 at approximately 2:35 a.m., four uniformed North Olmsted police officers arrived at the residence of appellee in response to a report by one Catherine Parisi. Ms. Parisi, an escort/dancer, reported being at the Faia home earlier to perform for appellee. During her time there, she stated that appellee had threatened her with a gun. After she left the residence some time in the early morning hours, she went to the North Olmsted Police Station and reported these events as well informing the police that drugs were present in the home. Appellee's elderly mother answered the door and was greeted by an officer who had his gun drawn as he entered the house looking for appellee. Upon seeing appellee seated on the living room sofa, the officer repeatedly asked, Where's the gun? The officer, with his gun still drawn, interrupted appellee's brother, Joseph, while he was urinating in the bathroom and directed him to be seated in the living room. At this point, the testimony conflicts. Two of the four officers first on the scene testified that appellee and his brother and mother consented to the search of the home. Mrs. Faia and Joseph Faia, on the other hand, testified that they were told by -3- the officers that they had a right to search the home whenever an offense involves a gun. This initial search, according to the officers' testimony, lasted approximately one hour, at which time the officers found what was suspected to be cocaine as well as a packet of powdery material, containing what was suspected to be heroin, in the basement living area occupied by appellee. Nonetheless, Joseph Faia did concede that he gave the officers permission to search the upstairs of the home but testified that by that time it was already 4:00 a.m., he was tired and just wanted the officers out of the home. It was during the upstairs search that two shotguns were retrieved from the attic that, according to Mrs. Faia, were inherited by her late husband when her father-in- law died. Sometime during this initial search, the officers thought it prudent to obtain a search warrant. The officers remained at the home and testified that the Faia family was not free to roam the house and was instructed that they were not to leave the residence. An investigator arrived at the home sometime before 6:00 a.m. and the search warrant was ultimately executed at approximately 2:00 p.m. that afternoon, at which time trace evidence of marijuana, heroin and cocaine were found. The search was completed around 6:00 p.m. A six-count indictment was eventually returned against appellee, charging him with (1) aggravated robbery, in violation of R.C. 2911.01; (2) felonious assault, in violation of R.C. 2903.11; (3) attempted murder, in violation of R.C. 2923.02/2903.02; (4) -4- having a weapon while under disability, in violation of R.C. 2923.13; and (5) two counts of possession of drugs, in violation of R.C. 2925.11. Each count carried one or two firearm specifications. The State eventually dismissed the assault-related charges, leaving the weapon-under-disability charge and the two counts of drug possession. Appellee moved to suppress the evidence claiming that the warrantless search was not consensual nor based on the presence of exigent circumstances. In granting the motion, the court reasoned that no exigent circumstances existed because the alleged victim, or any person in the residence, was not in any danger. Nor was any testimony presented to support that the police had reason to believe that appellee, or any other person in the residence, was likely to destroy evidence. Likewise, the trial court determined that the officers illegally detained the members of the Faia household by creating an atmosphere and appearance of legitimate authority thereby making the search nonconsensual especially in light of the officers' decision to procure a search warrant after they had already thoroughly searched the home. The State timely appeals this decision and assigns the following error for our review: THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED THE DEFENDANT'S MOTION TO SUPPRESS WITH RESPECT TO THE SHOTGUNS SEIZED IN THE CONSENSUAL SEARCH OF THE UPSTAIRS OF THE RESIDENCE. In its sole assignment of error, the State contends that the search of the Faia home was done with the explicit consent of the -5- household members and, therefore, satisfied the voluntary consent exception justifying a warrantless search. Appellee, on the other hand, maintains that the search was not consensual but merely a submission to authority. In a motion to suppress, the trial court assumes the role of the trier of fact and, as such, is in the best position to resolve questions of fact and evaluate witness credibility. State v. Smith (1991), 61 Ohio St.3d 284; State v. Fanning (1982), 1 Ohio St.3d 19. Accordingly, we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Klein (1991), 73 Ohio App.3d 486, 488. Accepting those facts as true, we must independently determine, as a matter of law and without deference to the trial court's conclusion, whether they meet the applicable legal standard. See, also, State v. Retherford (1994), 93 Ohio App.3d 586, 592. Warrantless searches are per se unreasonable under the Fourth Amendment unless a well-defined exception, such as voluntary consent, applies. State v. Sneed (1992), 63 Ohio St.3d 3, 6-7. Voluntariness is a question of fact and depends on the totality of the circumstances, with the government having the burden of proving that the consent was given freely and voluntarily. Retherford, supraat 596, quoting Schneckloth v. Bustamonte (1973), 412 U.S. 218. The government's burden is not satisfied by showing a mere submission to a claim of lawful authority. Bustamonte, supra at 233; see, also, Florida v. Royer (1983), 460 U.S. 491, 497; State v. Robinette (1997), 80 Ohio St.3d 234, 243. If the -6- consent is obtained while being illegally detained, that consent is vitiated unless the government proves that it was not the product of the illegal detention, but the result of an independent act of free will. Retherford, supra at 596; see, also, Royer, supra at 501. Here the State has failed to sufficiently demonstrate that any of the household members independently and of their own volition had given any such consent. First, appellee and his family were detained under the pretense that the officers could search the home because of allegations that an assault occurred in the home involving a gun.1With their guns drawn, the officers directed the Faias to be seated in the living room. They were not permitted to freely access other areas of the home and were likewise prohibited from leaving the home. Consent under these circumstances, where the officers claimed to be acting under lawful authority, is not voluntarily and freely given so as to make the warrantless search constitutionally valid. Yet the State claims that Joseph Faia gave his consent to search the upstairs area of the home that he occupied and the guns subsequently found. We likewise find this consent not voluntarily given. The presence of several officers in the home in the middle of the night after having been there already two hours is not only threatening and intimidating but gives the appearance that the officers were acting under a claim of legitimate authority. This, 1Interestingly enough, the State does not advance this theory as one supporting exigent circumstances on appeal, but rather confines its argument to that of voluntary consent. -7- coupled with the officers' entrance into the home with their guns drawn, leaves little room for the Faia household members to consider anything but the ubiquitous nature of the officers in their home. More troubling is the fact that the officers, during the course of the initial search, felt it necessary to obtain a warrant to further search the home. Until obtained nearly ten hours later, the Faia household members' liberty remained restricted without any valid reason to do so. Specifically, the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution guarantee that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated ***. The basic purpose of these constitutional provisions is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. Camara v. Mun. Court of the City and Cty. of San Francisco (1967), 387 U.S. 523, 528. No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. Union Pacific Ry. Co. v. Botsford (1891), 141 U.S. 250, 251. The United States Constitution and the constitution of the State of Ohio do not primarily exist to justify police activity but, more importantly, to provide fundamental protections to the citizenry. Since the search in this case was neither voluntarily -8- consented to nor due to any exigent circumstances, it is not, therefore, constitutionally valid. The trial court heard the testimony of the State's witnesses and evaluated their credibility. Because competent, credible evidence was presented from which the trial court could conclude that appellee was not afforded the protection envisioned by these constitutional provisions, we find no error in its judgment. Accordingly, the State's sole assignment of error is not well taken and is overruled. -9- It is ordered that appellee recover of appellant 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 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. TIMOTHY E. McMONAGLE JUDGE O'DONNELL, P.J. and SPELLACY, J., CONCUR. N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's .