OH12: Living with a probationer is not a complete waiver of a reasonable expectation of privacy, except as to common areas

By living with a probationer, one’s reasonable expectation of privacy is not completely lost and the entire house is not open to a probation search. The probationer can only consent to search of common areas. Here, the probationer let the cotenant run a grow operation in the locked basement which was found not to be a common area. State v. Norman, 2014-Ohio-5084, 2014 Ohio App. LEXIS 4936 (12th Dist. November 17, 2014):

[*P41] In concluding that Andre did not have actual or apparent authority to consent to a search of the basement we expressly reject the state’s argument that appellant, by choosing to live in a home owned by a probationer, assumed the risk that a probation search would encompass all areas of the residence. Rather, we find that there are limits on what areas a cotenant, regardless of his probation status, may consent to have searched. See Matlock, 415 U.S. 164; Rodriguez, 497 U.S. 177; Randolph, 547 U.S. 103. We hold that where a cotenant who is not on probation shares a residence with a probationer, the warrantless probation search of the residence must be limited to the common areas the probationer is known to occupy or have joint control over.

[*P42] Other courts considering this issue have reached a similar result. See People v. Woods, 21 Cal.4th 668, 981 P.2d 1019 (Cal.1999); State v. Johnson, 748 P.2d 1069 (Utah 1987). In Woods, the Supreme Court of California reversed a lower court’s decision suppressing evidence obtained against two cotenants who resided in the same home as a probationer. The probationer, Loza, had agreed as a condition of her probation to submit her residence, a one-bedroom home, to warrantless searches. Woods at 671. During a probation search, officers found Loza’s two roommates, the cotenants Woods and Benson, inside the bedroom with methamphetamine and marijuana. Id. at 672. The California court, citing the United States Supreme Court’s decision in United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988 (1974), found that Loza’s consent to a warrantless search per the terms of her probation provided valid consent for the search of the residence as “consent [was] given by one person with common or superior authority over the area to be searched.” Woods at 675-676. The court specifically held:

[W]hether the purpose of the search is to monitor the probationer or to serve some other law enforcement purpose, or both, the search in any case remains limited in scope to the terms articulated in the search clause *** and to those areas of the residence over which the probationer is believed to exercise complete or joint authority. United States v. Matlock, supra, 415 U.S. at pp. 170-171. ***

* * *

[O]ur holding is not intended to legitimize unreasonable searches with respect to nonprobationers who share residences with probationers. In all cases, a search pursuant to a probation clause may not exceed the scope of the particular clause relied upon. * * * Moreover, officers generally may only search those portions of the residence they reasonably believe the probationer has complete or joint control over. * * * That is, unless the circumstances are such as to otherwise justify a warrantless search of a room or area under the sole control of a nonprobationer (e.g., exigent circumstances), officers wishing to search such a room or area must obtain a search warrant to do so.

(Emphasis added.) Id. at 681-682.

[*P43] Similarly, in Johnson, the Supreme Court of Utah relied on the principles of law set forth in United States v. Matlock in holding that “[w]hen a parolee lives with a nonparolee *** the cotenancy restricts, to some degree, the extent of a permissible consent search. The scope of the consent impliedly given by a cotenant is limited to those parts of the premises where the tenants possess ‘common authority over or other sufficient relationship to the premises or effects sought to be inspected.'” Johnson, 748 P.2d at 1073, quoting Matlock, 415 U.S. at 171. Because law enforcement found evidence of a crime in a common area, a hall closet, the court determined that the search was lawful and did not violate the non-parolee cotenant’s right of privacy. Id. at 1074.

[*P44] While the rationales and holdings expressed in Woods and Johnson are not binding on this court, we find them persuasive. These cases further support our conclusion that Andre’s probation consent to a warrantless search of his residence did not encompass the basement as he was not known to occupy or have joint control over the area.

[*P45] Accordingly, for the reasons set forth above, we find that the trial court erred in denying appellant’s motion to suppress on the basis that Andre consented, or appeared to have the authority to consent, to the warrantless search of the basement.