State v. Brandau
2021 – Ohio – 3688
Fourth District Appellate Court
Jackson County, Ohio
The Jackson County, Ohio Sheriff’s Office received a call at approximately 1:30 a.m. on June 20, 2018, reporting that bullet holes had been located in a house trailer owned by Derek Slusher, Mr. Jason Brandau’s nephew, which was located in Jackson County, Ohio. Mr. Slusher’s mother, Ms. Valerie Creech, observed the holes when she had gone to check on the house and feed Mr. Brandau’s rabbits. Jackson County Sheriff’s Deputy Sgt. Keith Copas met with Ms. Creech, who informed him that when she arrived at the location, Mr. Jason Brandau, who lived in a house trailer located next door, walked over. She reported to Sgt. Copas that Mr. Brandau appeared to be intoxicated, that he had a firearm, and that he told her he had been shooting earlier in the day.
As a result, Sgt. Copas, went next door to Mr. Brandau’s residence, where he met Mr. Brandau’s brother, Steve Brandau. Mr. Steve Brandau advised that he had a key to the trailer, that Mr. Brandau and his father (which is also Steve’s father) lived in the trailer, and that “he was allowed to come and go.” It would be this statement that will be at the heart of this appeal. Thereafter, Mr. Steve Brandau allowed Sgt. Copas into the trailer’s back door, where Mr. Jason Brandau was found in the living room, sleeping in a bed. When Sgt. Copas pulled back the covers and got Mr. Jason Brandau out of bed, he observed that Mr. Brandau had a firearm on his person and also had ammunition. Mr. Brandau was arrested and taken into custody at that time.
Mr. Brandau pled not guilty to the charges contained in the indictment that was later filed and the matter proceeded through discovery. Mr. Brandau’s counsel filed a motion to suppress evidence on October 10, 2018. In his motion, he argued that the warrantless entry into his home and the search of his residence was unlawful and that any evidence and statements received as a result should be suppressed. Mr. Brandau further argued that no one had legal authority to consent to entry into the home except for his father and himself, who were living there. The State filed a memorandum in opposition on March 15, 2019, contending that Mr. Brandau’s brother, Mr. Steve Brandau, who had a key, had authority to provide consent to enter. The State analogized the situation to one in which a minor child allows law enforcement to enter the residence of a parent, A hearing on the motion was held on March 5, 2019, where both Sgt. Copas and Mr. Jason Brandau testified. Mr. Brandau testified that his brother had not been provided a key to his residence and that his brother had not been to the residence in over five years.
The trial court ultimately denied the motion to suppress on March 29, 2019. In its decision, the court relied on Gibson, supra, and found that because Brandau’s brother had a key to the residence, he had mutual use of the residence, as well as joint access and control of the property. The trial court reasoned that “[i]ndividuals generally are not given keys to a property and allowed to come and go as they please unless there is an intention for mutual use and joint access.” The trial court further found that “Sergeant Copas had an objectively reasonable belief that Steve Brandau possessed apparent authority to provide consent.”.
Thereafter, the matter proceeded to a jury trial. Mr. Brandau was ultimately acquitted of improperly discharging a firearm into a habitation and using a weapon while intoxicated, but he was found guilty of having a weapon while under disability. The trial court entered a judgment of conviction on April 9, 2019, and imposed a 24-month prison term upon Mr. Brandau on May 13, 2019, granting him credit for 205 days served. The trial court also informed Mr. Brandau that he may be subject to a three-year term of post-release control, that he was prohibited from owning or carrying a firearm or dangerous ordnance, and the court ordered the forfeiture of a Ruger .22 caliber pistol. It is from this judgment that Mr. Brandau now brings his timely appeal, setting forth four assignments of error for our review.
There is no evidence that Steve Brandau had an ownership interest in the house, and even if there was, under the theory of common authority, ownership is not enough unless one is also a resident or an occupant. Further, there is no evidence that he was a resident of the house, that he was a current tenant or co-tenant of the house, or that he was an occupant of the house. Instead, it was clear to Sgt. Copas that Mr. Steve Brandau lived elsewhere and had only just shown up at Mr. Jason Brandau’s house. His only connection to the house was that his father and adult brother lived there, that he possessed a set of keys, and claimed that he was entitled to come and go.
However, we cannot conclude that his claim that he was entitled to come and go, even if accepted as true, constitutes “common authority” for purposes of providing third-party consent. Even if he was permitted to come and go, there is no testimony or other evidence in the record from which it could be reasonably inferred that he mutually used the property or had joint control over the property for most purposes, which is necessary to establish common authority or apparent authority.
As such, we conclude the trial court erred in finding that Mr. Brandau’s brother validly consented to law enforcement’s entry into Mr. Brandau’s home. As a result, we further find that the trial court erred in denying Mr. Brandau’s motion to suppress. Because we have found merit in Mr. Brandau’s fourth assignment of error, it is sustained.
Accordingly, the judgment of the trial court is reversed, Mr. Brandau’s conviction and sentence are reversed, and this matter is remanded to the trial court for further proceedings.
- This case demonstrates the many challenges law enforcement has when determining joint access and control over property. Here, Mr. Steve Brandau told Sgt. Copas that he was allowed to come and go from within the trailer his brother was living. He was permitted to come and go so much that Mr. Steve Brandau had a key that tumbled the back door of the trailer. Copas entered the locked back door of the trailer utilizing the key provided by Mr. Steve Brandau. Ultimately the Fourth District Appellate Court held that simply possessing a key where the individual can come and go is not joint access and control.
- This case should be contrasted with the U.S. Supreme Court Illinois v. Rodriguez, 497 U.S. 177 (1990). In that case a similar fact pattern occurred. Chicago Police was investigating a domestic violence call. The officers were initially dispatched to 3554 Wolcott Avenue, Chicago, Illinois. There the officers were met by Ms. Gale Fischer. Fischer’s mother owned the address at 3554 Wolcott Avenue. Ms. Fischer told the Chicago Police Officers that her boyfriend beat her up at ‘their’ apartment located at 3519 South California Avenue, Chicago, Illinois, approximately 1.5 miles away from the Wolcott address. Ms. Fischer and the officers went to 3519 South California and the officers knocked on the door to investigate the domestic violence complaint. There was no answer, so the officers used Ms. Fischer’s key, went in and arrested Mr. Rodriguez. During the arrest the officers observed cocaine in two open brief cases in plain view. Mr. Rodriguez was charged with Domestic Battery [Domestic Violence in the State of Illinois] and Possession of a Controlled Substance with Intent to Distribute. During the Motion to Suppress Ms. Fischer testified that she did not live with Mr. Rodriguez at 3519 South California Avenue, did not have clothes inside the address, get mail there or at any time actually lived therein. Ultimately the U.S. Supreme Court upheld Mr. Rodriguez’s conviction and permitted the cocaine to be admissible because a reasonable police officer would have believed that the lying Ms. Fischer did live at 3519 South California Avenue because she called ‘their’ apartment and had a key. For more information on the Rodriguez case see A Consensual Entry that Wasn’t. The Officers Were Wrong … But Were They Reasonable?. This case, State v. Brandau is distinguishable because Mr. Steve Brandau never told Sgt. Copas that he lived in the trailer with his brother, Mr. Jason Brandau. Simply that he could “come and go” at any time. Based on this statement the Fourth District Appellate Court held “Even if he was permitted to come and go, there is no testimony or other evidence in the record from which it could be reasonably inferred that he mutually used the property or had joint control over the property for most purposes, which is necessary to establish common authority or apparent authority.”. Perhaps if Mr. Steve Brandau was the one who regularly fed Mr. Jason Brandau’s rabbits at 1:30 a.m. then it would have been considered joint access and control, but those rabbit feeding duties fell to other family members.
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Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!