[Cite as State v. Sky Lake, 2018-Ohio-1707.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

LAWRENCE COUNTY 

STATE OF OHIO, : 

 : Case Nos. 17CA15 

Plaintiff-Appellee, : 17CA16 

 : 

v. : DECISION AND JUDGMENT 

 : ENTRY 

SKY LAKE and TRACY L. ELLIS, : 

 : 

 Defendants-Appellants. : Released: 04/27/18 

_____________________________________________________________ 

APPEARANCES: 

Stephen T. Wolfe, Wolfe Law Group, LLC, Columbus, Ohio, for 

Appellants. 

Brigham Anderson, Lawrence County Prosecutor, and Daniel Kasaris, 

Special Assistant Lawrence County Prosecutor/Senior Assistant Ohio 

Attorney General, Cleveland, Ohio, for Appellee. 

_____________________________________________________________ 

McFarland, J. 

{¶1} Appellants, Tracy Ellis and Sky Lake, Inc., in a consolidated 

appeal, challenge the decisions of the trial court denying their motions to 

suppress filed in separate cases below. On appeal, Appellants contend that 

1) the trial court erred in finding that the warrantless search by law 

enforcement officers was justified; and 2) the trial court erred in finding that 

a warrant obtained after warrantless police entry was issued on valid 

probable cause. However, in light of our determination that the trial court 
Lawrence App. Nos. 17CA15 and 17CA16 2

reasonably concluded that staff at Sky Lake impliedly consented to law 

enforcement officers entering a game room that contained illegal gambling 

machines, Appellants’ constitutional rights were not violated by the 

warrantless search, or subsequent search pursuant to a warrant, that occurred 

as a result. Therefore, Appellants were not entitled to suppression of the 

evidence obtained as a result of the search. Accordingly, both of 

Appellants’ assignments of error are overruled and the judgment of the trial 

court is affirmed. 

FACTS 

{¶2} Appellants, Tracy Ellis and Sky Lake, Inc., were indicted on 

April 19, 2016 on multiple misdemeanor and felony counts. Tracy Ellis was 

indicted for twenty-four counts, including three first degree misdemeanor 

counts of gambling, twelve third degree felony counts of money laundering, 

four fifth degree felony counts of possession of criminal tools, three first 

degree misdemeanor counts of operating a gambling house and two first 

degree felony counts of engaging in a pattern of corrupt activity. Sky Lake, 

Inc. was separately indicted on identical counts. 

{¶3} The indictments stemmed from a several months-long 

investigation by investigators from the Charitable Law Section of the Ohio 

Attorney General’s Office, which was initiated after an anonymous 
Lawrence App. Nos. 17CA15 and 17CA16 3

complaint was made indicating that illegal gambling machines were located 

at Sky Lake, Inc. The record indicates that Appellant Sky Lake, Inc. is a 

public pay lake and restaurant owned by Appellant Tracy Ellis, and is 

located in Lawrence County, Ohio. Both Appellants denied the charges and 

their cases proceeded in the trial court as separate cases. Motions to 

suppress were filed in each case and a joint hearing on the motions was held 

June 15, 2017. 

{¶4} The State presented Damon Roberts as its sole witness in the 

suppression hearing. A review of the suppression hearing transcript 

indicates that Roberts, at the time of the investigations, was a major case 

investigator with the Charitable Law Section of the Ohio Attorney General’s 

office. Roberts testified that he and his partner, Tim Meyers, initially visited 

Sky Lake on the evening of January 17, 2014, after receiving an anonymous 

complaint. He testified that he and Meyers entered the establishment, 

ordered food and ate. He testified that while standing at the bar drinking 

coffee after he ate, he could hear bells and pinging sounds and that he was 

able to observe monitors that were lit up in a dark room near the bar. He 

testified that based on his experience he recognized the sounds to be those of 

slot machines. He testified the door to the room with what appeared to be 

slot machines was kept closed, but did not appear to be locked, and that he 
Lawrence App. Nos. 17CA15 and 17CA16 4

observed individuals leaving the room. He then left and did not return until 

March 14, 2014. 

{¶5} During his second visit, Roberts testified that he entered the 

restaurant with Meyers, he approached the clerk at the counter, and he asked 

the clerk to give him five ten dollar bills in exchange for a fifty dollar bill. 

He testified that he told the clerk at that time that he wanted change for the 

games or machines. The clerk obliged and made change from cash 

contained in her apron. Roberts testified that he and Meyers then walked 

into the game room, which was about ten steps away from the counter where 

the clerk was located. Roberts testified that he did not have to be buzzed 

into the room and that the door to the room was unlocked. Roberts testified 

that there was a sign on the outside of the door to the game room marked 

either “private” or “employees only.” Upon viewing photos of the facility, 

Roberts clarified that the door he went through to access the game room was 

marked “private,” rather than “employees only,” and that the reference in his 

written reports indicating the door was marked “employees only” was a 

mistake.1

 

{¶6} A review of the transcript further reveals that after entering the 

game room, the investigators played the machines, printed vouchers and 

 

1

 It appears that Roberts prepared written reports related to his visits to Sky Lake, Inc. on March 14, 2014, 

May 24, 2014, June 20, 2014, and July 1, 2014. In each report he indicated that the door to the game room 

was marked “employees only.” 
Lawrence App. Nos. 17CA15 and 17CA16 5

then cashed out by following instructions posted in the game room directing 

them to ring the doorbell in order for a clerk to come to the game room. 

Roberts testified that the clerk wrote their names down and then paid them 

from the pocket of her apron. Roberts testified that he went back three 

additional times after his March visit until July when a search warrant was 

obtained and executed. 

{¶7} Appellants presented one witness in support of their suppression 

motion, Carol Ellis, wife of Tracy Ellis. Mrs. Ellis testified that there are 

three doors as evidenced in the photos introduced at the hearing. The door 

to the far left is located behind the counter, has no sign, and leads into the 

kitchen. She testified that the middle door is also located behind the counter, 

is marked “employees only,” and leads into the bait room.2

 She testified that 

the door to the far right leads into the game room and is marked “private.” 

She testified it was her understanding that the door into the game room was 

kept locked and that individuals had to be “buzzed in” by the clerk. 

However, she also conceded that she had never worked at Sky Lake, had 

never tried to go into the game room and was not there on the dates at issue. 

 

2

 Mrs. Ellis testified that once in the bait room, one can go through a door to the left in order to enter the 

kitchen, or can go through a door to the right to enter the game room (through a door which has no sign). 

Roberts, however, testified that he at no point walked behind the counter in order to gain entrance into the 

game room. 
Lawrence App. Nos. 17CA15 and 17CA16 6

{¶8} After permitting oral closing arguments, the trial court issued a 

written decision on July 3, 2017 denying both of the motions to suppress. In 

reaching its decision, the trial court noted that although Sky Lake was open 

to the public, it had a right to preserve certain areas as private. However, the 

trial court determined that Roberts was given implied consent to enter the 

game room when the clerk provided him change in response to his request 

for her to do so in order that he could play the machines, followed by the 

fact that he then walked into the game room unimpeded, played games, 

printed vouchers, and exchanged them for cash. The trial court reasoned 

that the fact pattern demonstrated, at the least, implicit consent to his 

presence in the game room. The trial court further opined that it was unclear 

whether the buzzer was operational or if the door was already unlocked on 

the dates at issue, but that if the door was locked and Roberts was in fact 

buzzed in, as described by Mrs. Ellis in her testimony, then Sky Lake had 

expressly consented to Roberts’ presence in the game room. 

{¶9} Thereafter, Appellants entered into plea negotiations whereby 

they pleaded no contest to the following counts, in exchange for the 

dismissal of the remaining counts: Tracy Ellis – two counts of first degree 

misdemeanor gambling and six counts of fifth degree felony possession of 
Lawrence App. Nos. 17CA15 and 17CA16 7

criminal tools3

; and Sky Lake, Inc. – two counts of third degree felony 

money laundering and one count of attempted engaging in a pattern or 

corrupt activity, a third degree felony.4

 Appellant Tracy Ellis was sentenced 

to a one-year term of community control, as well as ninety days of house 

arrest, court costs, and forfeiture of $68,251.96. Appellant Sky Lake, Inc. 

was sentenced to a forfeiture of any and all interest it had in the $68,251.96, 

which were proceeds of criminal activity. 

{¶10} Appellants separately appealed to this Court and the appeals 

were thereafter consolidated. Appellants now jointly raise two assignments 

of error for our review. 

ASSIGNMENTS OF ERROR 

“I. THE TRIAL COURT ERRED IN FINDING THAT THE 

WARRANTLESS SEARCH BY LAW ENFORCEMENT 

OFFICERS WAS JUSTIFIED BY CONSENT. 

II. THE TRIAL COURT ERRED IN FINDING THAT A WARRANT 

OBTAINED AFTER WARRANTLESS POLICE ENTRY WAS 

ISSUED ON VALID PROBABLE CAUSE.” 

LEGAL ANALYSIS 

{¶11} Because Appellant’s assignments of error are interrelated, they 

lend themselves to a joint analysis and we therefore address them in 

 

3

 The record indicates that counts fifteen and sixteen, which originally charged Ellis with third degree 

felony money laundering, were both amended to fifth degree felony possession of criminal tools. 

4

 Count twenty-three, first degree felony engaging in a pattern of corrupt activity, was amended to third 

degree attempted engaging in a pattern of corrupt activity. 
Lawrence App. Nos. 17CA15 and 17CA16 8

conjunction with one another. Appellants jointly contend, in their first 

assignment of error, that the trial court erred in finding that the warrantless 

search by law enforcement officers was justified by consent. In their second 

assignment of error, Appellants contend that the trial court erred in finding 

that a warrant obtained after warrantless police entry was issued on valid 

probable cause. Because both of these determinations were made by the trial 

court in the context of denying Appellants’ motions to suppress, we first 

consider our standard of review when reviewing a trial court’s denial of a 

motion to suppress. 

Standard of Review 

{¶12} Appellate review of a trial court's decision on a motion to 

suppress raises a mixed question of law and fact. State v. Crocker, 2015-

Ohio-2528, 38 N.E.3d 369, ¶ 60 (4th Dist.); citing State v. Hobbs, 133 Ohio 

St.3d 43, 2012-Ohio-3886, 975 N.E.2d 965, ¶ 6. Because the trial court acts 

as the trier of fact in suppression hearings and is in the best position to 

resolve factual issues and evaluate the credibility of witnesses, we must 

accept the trial court's findings of fact if they are supported by competent, 

credible evidence. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 

797 N.E.2d 71, ¶ 8. Accepting these facts as true, we must then 

“independently determine, without deference to the conclusion of the trial 
Lawrence App. Nos. 17CA15 and 17CA16 9

court, whether the facts satisfy the applicable legal standard.” Hobbs at ¶ 8; 

citing Burnside at ¶ 8. 

Fourth Amendment 

{¶13} “The Fourth Amendment to the United States Constitution, as 

applied to the states through the Fourteenth Amendment, provides: ‘The 

right of the people to be secure in their persons, houses, papers, and effects, 

against unreasonable searches and seizures, shall not be violated, and no 

Warrants shall issue, but upon probable cause, supported by Oath or 

affirmation, and particularly describing the place to be searched, and the 

persons or things to be seized.’ ” State v. Eatmon, 4th Dist. Scioto No. 

12CA3498, 2013-Ohio-4812, ¶ 11. “Section 14, Article I of the Ohio 

Constitution also prohibits unreasonable searches and seizures.” Id. 

“Because Section 14, Article I and the Fourth Amendment contain virtually 

identical language, the Supreme Court of Ohio has interpreted the two 

provisions as affording the same protection.” Id.; citing State v. Orr, 91 Ohio 

St.3d 389, 391, 745 N.E.2d 1036 (2001). 

{¶14} “ ‘The Warrant Clause of the Fourth Amendment protects 

commercial buildings as well as private homes. To hold otherwise would 

belie the origin of the Amendment, and the American colonial experience. * 

* *’ ” State v. Penn, 61 Ohio St.3d 720, 723, 576 N.E.2d 790 (1991); 
Lawrence App. Nos. 17CA15 and 17CA16 10

quoting Marshall v. Barlow’s, Inc. 436 U.S.307, 311-312, 98 S.Ct. 1816, 

(1978). The Supreme Court of Ohio has further held that “Ohio’s parallel 

provision to the Fourth Amendment also protects commercial buildings in 

the same manner it protects private homes and offices * * *.” Id. 

{¶15} “Searches and seizures conducted without a prior finding of 

probable cause by a judge or magistrate are per se unreasonable under the 

Fourth Amendment, subject to only a few specifically established and welldelineated exceptions.” Id. at ¶ 12; citing Katz v. United States, 389 U.S. 

347, 357, 88 S.Ct. 507 (1967). “ ‘Once the defendant demonstrates that he 

was subjected to a warrantless search or seizure, the burden shifts to the 

[S]tate to establish that the warrantless search or seizure was constitutionally 

permissible.’ ” Id.; quoting State v. Smith, 4th Dist. Ross No. 12CA3308, 

2013-Ohio-114, ¶ 12. 

{¶16} It is clear that in this case, law enforcement visited Sky Lake 

four times to gather information and make observations without a warrant. 

Further, the observations made and information gathered during those 

warrantless entries into Sky Lake served as the basis for the later issuance of 

a search warrant, which resulted in the confiscation of several gambling 

machines and over $68,000.00. 

Consent 
Lawrence App. Nos. 17CA15 and 17CA16 11

{¶17} “One of the well-delineated exceptions to the general 

prohibition against a warrantless search occurs when the person consents to 

the search.” See State v. Bloomfield, 4th Dist. Lawrence No. 14CA3, 2015–

Ohio–1082, ¶ 29; citing State v. Ossege, 2014–Ohio–3186, 17 N.E.3d 30, 

¶ 13 (12th Dist.), and State v. Morris, 42 Ohio St.2d 307, 318, 329 N.E.2d 

85 (1975). Consent is not an exception to the warrant requirement that is 

premised upon exigent circumstances; rather it is a decision by a citizen to 

waive Fourth Amendment rights. Katz, Ohio Arrest, Search & Seizure, 

Section 20:3 (2015). “No Fourth Amendment violation occurs when an 

individual voluntarily consents to a search.” State v. Carothers, 2015–Ohio–

4569, 47 N.E.3d 483, ¶ 25 (5th Dist.); citing United States v. Drayton, 536 

U.S. 194, 207, 122 S.Ct. 2105 (2002). Consent searches are an important 

tool in police investigations because “a valid consent may be the only means 

of obtaining important and reliable evidence.” Schneckloth v. Bustamonte, 

412 U.S. 218, 227–228, 93 S.Ct. 2041 (1973). 

{¶18} Consent to search can be “obtained, either from the individual 

whose property is searched, or from a third party who possesses common 

authority over the premises.” Illinois v. Rodriguez, 497 U.S. 177, 181, 110 

S.Ct. 2793 (1990). “The authority which justifies third-party consent does 

not rest upon the law of property, with its attendant historical and legal 
Lawrence App. Nos. 17CA15 and 17CA16 12

refinements, but rests rather on mutual use of the property by persons 

generally having joint access or control for most purposes, so that it is 

reasonable to recognize that any of the co-inhabitants has the right to permit 

the inspection in his own right and that the others have assumed the risk that 

one of their number might permit the common area to be searched.” State v. 

Gordnoshnka, 8th Dist. Cuyahoga No. 86319, 2006-Ohio-563, ¶ 11; citing 

United States v. Matlock, 415 U.S. 164, 172, 94 S.Ct. 988 (1974); see also 

State v Gibson, 164 Ohio App.3d 558, 2005-Ohio-6380, 843 N.E.2d 224, 

¶ 18 (4th Dist.). 

{¶19} The State is required to establish, by clear and convincing 

evidence, that consent to the search was freely and voluntarily given by one 

with authority to do so. State v. Posey, 40 Ohio St.3d 420, 427, 534 N.E.2d 

61 (1988); State v. Connors–Camp, 2nd Dist. Montgomery No. 20850, 

2006-Ohio-409 ¶ 29; see also State v. Penn, supra, at 724 (discussing a 

terminated employee's versus a current employee’s authority to provide 

consent to search his place of employment). “ ‘[W]hether a consent to 

search was in fact “voluntary” or was the product of duress or coercion, 

express or implied, is a question of fact to be determined from the totality of 

the circumstances.’ ” Posey at 427; quoting Schneckloth, supra, at 227. 

Further, it is not necessary that the consenting third party have actual 
Lawrence App. Nos. 17CA15 and 17CA16 13

authority over the premises. State v. Portman, 2nd Dist. Clark No. 2013-CA68, 2014-Ohio-4343, ¶ 13, citing United States v. Ayoub, 498 F.3d 532, 537 

(6th Cir.2007). Even if an officer erroneously believes that a third-party is 

authorized to give consent, using an objective standard, third-party consent 

is valid if an officer looking at the then-available facts could reasonably 

conclude that the third-party had apparent authority to consent. Rodriguez at 

186. 

Analysis 

{¶20} Here, as set forth above, the record reveals that Damon Roberts 

and his partner entered Sky Lake, Inc., a public restaurant and pay lake on 

several occasions. On the first visit they simply ordered food, drank coffee 

and made observations regarding a room marked private that, when the door 

would open for people to exit, appeared to contain several screens or 

monitors that were lit up and that emitted pinging sounds and bells, which, 

in Robert's experience, were likely slot machines. On their second visit, the 

two gained entry via the public entrance and went straight to the counter 

where they found a clerk working. Roberts asked the clerk for change for a 

fifty dollar bill so he could play the games. The clerk obliged, gave him five 

ten dollar bills from her apron, and stood by while he and his partner entered 

the game room located approximately ten steps away. Once in the game 
Lawrence App. Nos. 17CA15 and 17CA16 14

room, the men played games, printed vouchers, and then summoned the 

clerk as instructed by a sign on the interior door in order to cash out. The 

clerk paid them their winnings from cash contained in her apron and they 

left. Roberts and his partner made additional visits and had the same 

experience in terms of accessing the room and being paid their winnings. 

{¶21} Based upon this fact pattern, we find that the trial court 

reasonably concluded that staff at Sky Lake, Inc. impliedly consented to the 

entrance of two undercover officers into their game room in order to observe 

and play their illegal gambling machines. Further, as noted by the trial 

court, it is unclear from the record before us whether or not the clerk who 

gave them change to play the gambling machines may have actually buzzed 

them in to the game room, or whether the door was simply unlocked. If it 

was the latter scenario, we agree with the trial court in its opinion that Sky 

Lake, Inc. staff expressly consented to the entry into the game room, despite 

it being marked private. We find that State v. Posey, supra, is instructive to 

our analysis, and further find it applicable and controlling to our disposition 

of this matter. 

{¶22} In State v. Posey, supra, the Supreme Court of Ohio explained 

as follows: 

"As the United States Supreme Court has held, '[t]he touchstone 

of Fourth Amendment analysis is whether a person has a 
Lawrence App. Nos. 17CA15 and 17CA16 15

"constitutionally protected reasonable expectation of privacy." ' 

California v. Ciraolo (1986), 476 U.S. 207, 211, 106 S.Ct. 

1809, 1811, 90 L.Ed.2d 210 (quoting Katz, supra, 389 U.S. at 

360, 88 S.Ct. at 516). Accordingly, '[w]hat a person knowingly 

exposes to the public, even in his own home or office, is not a 

subject of Fourth Amendment protection.' Katz, supra, at 351, 

88 S.Ct. at 511. Entry into a home or office with the consent of 

the owner or occupier is thus not a 'search' within the protection 

of the Fourth Amendment. Maryland v. Macon (1985), 472 

U.S. 463, 469, 105 S.Ct. 2778, 2782, 86 L.Ed.2d 370." Posey at 

427. 

However, we are also mindful that an individual may preserve an area as 

private in an area otherwise accessible to the public. Katz, supra, at 351. 

{¶23} Posey involved the entrance into a private, nonprofit fraternal 

organization by undercover officer. The undercover officer entered the 

private establishment as the guest of a member of the club, and the 

doorkeeper at the entrance did not ask to see the credentials of the club 

member upon entrance. Id. at 421. Once inside, the pair ordered drinks and 

observed gambling activity consisting of electronic draw poker machines 

and instant win tickets. Id. The officer actually engaged in those activities 

while there, and then, based upon his observations, he obtained a search 

warrant and conducted a search. Id. 

{¶24} In Posey, the appellants argued that no voluntary consent could 

have been given because the officer did not identify himself as a law 

enforcement officer and did not disclose that his purpose there involved the 
Lawrence App. Nos. 17CA15 and 17CA16 16

investigation of alleged illegal gambling. Id. at 427. Despite the argument, 

the Court found, under the totality of the circumstances, that "consent was 

freely and voluntarily given and there was no deception perpetrated." Id. In 

reaching this decision, the Court noted the following facts: 1) that the only 

thing "deceptive" about the officer's entry was that he did not openly identify 

himself as law enforcement; 2) that he entered as a guest of a member, "as 

could any member of the general public[;] and 3) that apparently no 

credentials were checked at the door, which the Court identified as a further 

indication that the club had "no reasonable expectation of privacy." Id. at 

428. Thus, the Posey court found valid consent was given by staff members 

of a private club to enter the club, the entire premises of which was 

considered to be private, because no credentials were checked prior to entry. 

{¶25} In contrast, Sky Lake, Inc. is a public establishment that any 

member of the public can enter. Further, despite attempting to reserve the 

gambling room as private by putting a sign marked "private" on the door 

into the game room, staff checked no credentials and asked for no 

identification of Roberts and his partner prior to allowing them to enter to 

play the machines. Based upon these facts we find Sky Lake, much like the 

appellants in Posey, had no reasonable expectation of privacy as to the game 

room. 
Lawrence App. Nos. 17CA15 and 17CA16 17

{¶26} Ultimately, the Supreme Court of Ohio in Posey held as 

follows: 

"Accordingly, we hold that when an individual gives consent to 

another to enter a private area wherein illegal activities are 

being conducted, the consent does not lose its status of being 

freely and voluntarily given merely because it would not have 

been given but for the fact that the other person failed to 

identify himself as a police officer." 

Others courts have adopted and applied the reasoning set forth in Posey as 

well. See State v. Loom Lodge 1245, et al., 10th Dist. Franklin Nos. 90AP415, 90AP-438, 90AP-439, 90AP-567 and 90AP-575, 1990 WL 179968 

(two police officers gained entry to various lodges by virtue of their private 

membership to investigate whether illegal gambling activities were 

occurring, where they ordered drinks, observed and played gambling 

machines and then left without revealing their identity, using the information 

gathered to obtain a search warrant); State v. VFW Post 431, 2004-Ohio3566, ¶ 47-48 (involving a scenario where a law enforcement officer made 

two entries into the VFW, by virtue of his personal membership, without a 

warrant to gather information used to obtain a warrant); State v. Baker, 87 

Ohio App.3d 186, 191-192, 621 N.E.2d 1347 (1993) (applying Posey to a 

scenario involving an undercover officer gaining entry to a private hall by 

invitation of a member, where the officer did not encounter any person at the 

door and no one checked his credentials.) 
Lawrence App. Nos. 17CA15 and 17CA16 18

{¶27} In Loom Lodge, the court reasoned as follows: 

"Here, the invitation to enter was for the purpose of engaging in 

all the activity available at the post upon payment of the 

appropriate price, including the gambling activity. Thus, 

although the entry was not expressly for the purpose of 

engaging in gambling activity, it was one of the activities 

permitted." Loom Lodge at *3. 

The Loom Lodge court also reasoned that the officers' initial entry into the 

Lodge was not a search, nor a seizure, but rather that "[a]ll they gained was 

what their eyes could observe in plain view once they gained entry," and that 

"this information was then used as a basis for obtaining a search warrant, 

and only upon execution of this search warrant was evidence obtained and 

seized." Id. Under those circumstances, the court reasoned that there was 

nothing indicating that the entry was unlawful, even though the court 

characterized it as "deceptive," "where the officers seized no evidence and 

conducted no real search[.]" Thus, even characterizing the officers' entry as 

deceptive, the Loom Lodge court, relying on Posey, found the officers' entry 

into the private lodge to be lawful and thus, any observations of items in 

plain view to be fair game, in light of their lawful presence in the club. 

{¶28} Considering the above-cited case law, which consistently finds, 

relying on the Supreme Court of Ohio's holding in Posey, supra, that entry 

by undercover officers into private clubs is lawful 1) when the officers enter 

as a member without disclosing that they are police officers; 2) enter with a 
Lawrence App. Nos. 17CA15 and 17CA16 19

member through a door where a doorperson is present but does not request 

to see the credentials of the member prior to entry; or 3) enter with a 

member through a door without encountering a person or having to provide 

credentials. We find the reasoning of Posey applies, even more so, to the 

facts herein where the establishment at issue is not a private club, but rather 

a public restaurant and pay lake. Although we are mindful Appellants do 

have a right to maintain certain areas as private in their otherwise public 

facility, the facts here do not demonstrate that Appellants actually had a 

reasonable expectation of privacy as to the game room. 

{¶29} Here, Appellants provided no testimony indicating an 

individual had to be a member or had to present certain credentials in order 

to enter. There was no testimony indicating what requirements the officers 

had to meet in order to lawfully enter the game room. There was also no 

testimony that the individuals Roberts saw exiting the room were private 

members or had some distinction setting them apart from the general public, 

or other restaurant/pay lake customers, which allowed them to lawfully enter 

the game room. Instead, the evidence in the record demonstrates that all one 

had to do was inform a staff member that he or she wished to play the 

machines, and then proceed to walk into the game room. Thus, Appellants 
Lawrence App. Nos. 17CA15 and 17CA16 20

did not evidence a reasonable expectation of privacy as to the game room, 

despite the existence of a sign marked "private" over the door. 

{¶30} Applying the foregoing case law to the facts of this case, we 

find that Roberts and his partner lawfully entered Sky Lake, Inc. This 

included entry into the game room, without any form of deception and with 

the voluntary consent of Appellants, where they proceeded to make lawful 

observations confirming their suspicions that illegal gambling activity was 

occurring, which served as the basis for the grant of a subsequent warrant. 

Under the totality of the circumstances, we find no violation of the Fourth 

Amendment under this set of facts. As a result, we find no error on the part 

of the trial court in denying Appellants' motions to suppress filed in each 

case. Accordingly, both of Appellants' assignments of error are overruled 

and the judgments of the trial court are affirmed. 

 JUDGMENT AFFIRMED. 
Lawrence App. Nos. 17CA15 and 17CA16 21

JUDGMENT ENTRY 

 It is ordered that the JUDGMENT BE AFFIRMED and that costs be 

assessed to Appellants. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Lawrence County Common Pleas Court to carry this judgment into 

execution. 

 Any stay previously granted by this Court is hereby terminated as of 

the date of this entry. 

 A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion. 

For the Court, 

 BY: ______________________________ 

 Matthew W. McFarland, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.