UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

United States of America,

Plaintiff, Case No. 1:18cr80

v. Judge Michael R. Barrett

Alon Russell,

Defendant.

OPINION & ORDER

This matter before the Court upon Defendant Alon Russell’s Motion to Suppress. (Doc. 

17). The United States has filed a Response in Opposition (Doc. 27) and Defendant filed a Reply 

(Doc. 28). On August 21, 2018 and September 10, 2018, a hearing was held on the Motion. (Docs.

19, 20, 23, 25). The United States presented the testimony of Wilmington Police Officer Robert 

Martin and Wilmington Police Sergeant Neil Rager. Defendant presented the partial testimony of 

Jennifer Alston.1

I. BACKGROUND

The United States has brought one count against Defendant: possession of a firearm by a 

prohibited person in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 18 U.S.C. § 2.

In his Motion to Suppress, Defendant seeks to suppress the evidence obtained in a search 

of his home conducted by members of the Wilmington, Ohio Police Department. Defendant 

 1

The Government orally moved to strike the testimony of Alston at the conclusion of the hearing, but the 

Court notes that the Government also relies on Alston’s testimony in its Response to Defendant’s Motion to 

Suppress. (Doc. 27, PAGEID# 129-130). Alston’s testimony was incomplete because after Alston testified at the 

hearing that the guns found during the search belonged to her, Alston was advised of her rights and was appointed 

an attorney. (Doc. 20, PAGEID# 53-57).
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maintains the search was conducted in violation of his Fourth Amendment rights because officers 

failed to obtain a search warrant or valid consent to search the home.

On May 20, 2018, City of Wilmington Police Department Sergeant Neil Rager arrived at 

a house on Darbyshire Road in Wilmington, Ohio. (Doc. 25, PAGEID# 17). Sergeant Rager was 

responding to a 911 call made by someone who was driving past the house and saw “a male hitting 

on a female in the front yard of a house.” (Gov’t Exh. 1; Doc. 25, PAGEID# 78). Officer Rager 

testified that he been to this house on Darbyshire Road on other occasions and that “[u]sually it's 

the lady that owns the house wants somebody removed for disturbances, loud arguing.” (Doc. 25, 

PAGEID# 81).

Officer Rager’s body camera footage from that day was introduced at the trial as 

Government’s Exhibit Two.

When Sergeant Rager arrived at the house, no one was in the front yard. (Doc. 25, 

PAGEID# 79). As he was walking up to the front of the house, Sergeant Rager saw a young boy

coming out of the house with a basketball, and asked the boy if his mom or dad were home. (Doc. 

25, PAGEID# 82; Gov’t Exh. 2 at 0:48). The boy ran into the house and a young female walked 

out of the house. (Doc. 25, PAGEID# 82).2

 Sergeant Rager explained to her why he was there. 

(Doc. 25, PAGEID# 82). The female then told Sergeant Rager that the people who were fighting 

were in the garage. (Gov’t. Exh. 2, at 1:40). When Sergeant Rager asked how he could get into 

the garage, the female started walking into the front door of the house. (Gov’t. Exh. 2, at 1:45). 

Sergeant Rager followed the female into the house and the female showed him to a door which led

to the garage. (Doc. 25, PAGEID# 82-83). Sergeant Rager went to the door, but it was locked. 

(Doc. 25, PAGEID# 83). The female told Sergeant Rager that this was not her house, but it 

 2

On Sergeant Rager’s bodycam video, the boy can be heard responding, “My mom is not here, but 

[inaudible].” (Gov’t. Exh. 2, at 0:50). The boy then runs into the house. (Gov’t. Exh. 2, at 0:57)
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belonged to “Christy” who was not there. (Gov’t. Exh. 2, at 1:53, 2:17). Sergeant Rager asked a 

male who was sitting on a couch inside the house if he had been the one fighting in the front yard. 

(Gov’t. Exh. 2, at 2:07). The male got off the couch and explained that the people who had been 

fighting were in the garage. (Gov’t. Exh. 2, at 2:29). Sergeant Rager then knocked on the door

to the garage. (Doc. 25, PAGEID# 83). Defendant opened the door. (Doc. 25, PAGEID# 83). 

Sergeant Rager testified that he could see into the garage and it was full of “loose random 

furniture” and looked like a place where people “just slept there overnight.” (Doc. 25, PAGEID# 

84). Defendant had a backpack on his shoulder when he came to the door. (Doc. 25, PAGEID# 

83, 95). When Sergeant Rager asked Defendant where he lived, Defendant told Sergeant Rager 

that he was staying there. (Doc. 25, PAGEID# 96). 

Sergeant Rager testified that because was on the scene alone and he could see that there 

were other people in the house, he asked Defendant to step outside to talk to him. (Doc. 25,

PAGEID# 83-84). Sergeant Rager testified that before Defendant left the doorway, he 

“deliberately set [the backpack] down on the floor.” (Doc. 25, PAGEID# 84). However, 

Defendant did not go outside as instructed. Instead, Defendant went to the back of the house 

yelling for the “house lady.” (Doc. 25, PAGEID# 85). Defendant then walked out the back door 

and yelled to people in the yard, asking them, “where’s the lady at?” (Doc. 25, PAGEID# 85). 

Sergeant Rager followed Defendant. (Gov’t. Exh. 2, at 4:22). Sergeant Rager’s bodycam video 

shows that outside there was a man and a woman in a fenced-in yard working on a lawnmower, 

another adult male in the yard who appears to be smoking, a toddler in diapers on the back deck

along with least two other children. (Gov’t. Exh. 2, at 4:15 to 4:24). None of these people 

responded to Defendant or spoke to Sergeant Rager. Sergeant Rager continued to follow

Defendant as he walked back into the house, became more and more agitated, and repeatedly 
4

asking “somebody to call somebody.” (Gov’t. Exh. 2, at 4:27 to 4:34). Inside the house, Sergeant 

Rager and Defendant got into a scuffle, and Sergeant Rager arrested Defendant for obstructing, 

assault and resisting. (Doc. 25, PAGEID# 86). 

After Sergeant Rager took Defendant outside and placed him in the back of his police 

vehicle, he had a conversation with Jennifer Alston, who told him Defendant’s name and explained 

that she was Defendant’s fiancé. (Doc. 25, PAGEID# 97-98). Sergeant Rager walked back 

towards the front door where he was met by two of the adult males coming out of the house. 

(Gov’t. Exh. 2, at 13:12). Sergeant Rager asked them whose house this was, and the men 

responded that the house belonged to “Christy” and she was not home. (Gov’t. Exh. 2, at 13:20 to 

13:25). Sergeant Rager asked to speak to the young woman again. (Gov’t. Exh. 2, at 1:45). The 

two men yelled to her to get her to come outside, and she came to the front door carrying a child. 

(Gov’t. Exh. 2, at 1:45). Sergeant Rager then went back into the house. (Doc. 25, PAGEID# 87). 

At the hearing, Sergeant Rager explained that he went back into the house because wanted to “talk 

to the witnesses and to see why [Defendant] had left his backpack behind.” (Doc. 25, PAGEID# 

87). Sergeant Rager testified that there were a total of approximately eight adults and children in 

the home. (Doc. 25, PAGEID# 86). At no time did anyone in the house tell Sergeant Rager that 

he did not have permission to go back into the house or into the garage. (Doc. 25, PAGEID# 87-

88). 

When Sergeant Rager saw the backpack it was partially unzipped. (Doc. 25, PAGEID# 

88). Sergeant Rager could see part of a pistol grip. (Doc. 25, PAGEID# 89). Sergeant Rager 

removed it from the garage and took it outside in order to maintain control of the area. (Doc. 25, 

PAGEID# 91). Jennifer Alston was present from the time Sergeant Rager picked up the backpack 

and brought it outside. (Gov’t. Exh. 2, at 13:41 to 14:45). Sergeant Rager and Alston discussed 
5

who the backpack belonged to and what was in the backpack, but at no point did Altson object to

Sergeant Rager entering the garage or searching the backpack. (Id.) 

Wilmington Police Officer Robert Martin testified that when he arrived on the scene, he 

removed a Taurus .40 caliber pistol and MasterPiece Arms .45 caliber pistol from the backpack. 

(Doc. 25, PAGEID #70-72; Gov’t Exh. 8-A; Gov’t Exh. 9-A).

Defendant maintains that neither he, his fiancé, nor any third-party gave the Wilmington, 

Ohio police officers permission to search the house, let alone his living area in the garage. 

Defendant argues that as a result, the search violated his Fourth Amendment rights and the 

evidence discovered as a result of the search should be suppressed.

The United States responds that (1) Defendant lacks standing to contest the entry of law 

enforcement into the house; (2) the weapon was in plain view of the officer; and (3) Defendant

abandoned the backpack.

II. ANALYSIS

The Fourth Amendment protects the “right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” 

U.S. Const. amend. IV. The “chief evil” against which the Fourth Amendment protects is the 

“physical entry of the home.” Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 

639 (1980). Warrantless searches and seizures “are per se unreasonable . . . subject only to a few 

specifically established and well delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 

88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

A. Standing

The Government argues that Defendant lacks standing to contest the search of the house. 

A person has standing to challenge the search of location if he or she has a reasonable expectation 
6

of privacy in the residence. See United States v. Washington, 573 F.3d 279, 282–83 (6th Cir. 

2009). The United States Supreme Court has recently explained:

The concept of standing in Fourth Amendment cases can be a useful shorthand for 

capturing the idea that a person must have a cognizable Fourth Amendment interest 

in the place searched before seeking relief for an unconstitutional search; but it 

should not be confused with Article III standing, which is jurisdictional and must 

be assessed before reaching the merits. Arizona Christian School Tuition 

Organization v. Winn, 563 U.S. 125, 129, 131 S.Ct. 1436, 179 L.Ed.2d 523 (2011) 

(“To obtain a determination on the merits in federal court, parties seeking relief 

must show that they have standing under Article III of the Constitution”); see also 

Rakas, supra, at 138–140, 99 S.Ct. 421. Because Fourth Amendment standing is 

subsumed under substantive Fourth Amendment doctrine, it is not a jurisdictional 

question and hence need not be addressed before addressing other aspects of the 

merits of a Fourth Amendment claim. 

Byrd v. United States, 138 S. Ct. 1518, 1530–31, 200 L. Ed. 2d 805 (2018). Even though the Court 

need not address the issue of standing first, the Court chooses to do so in this instance because the 

question as to whether Defendant has standing to challenge the search can be easily resolved in 

this case.

It is well-settled that an overnight guest retains a “legitimate expectation of privacy in his 

host's home” sufficient to establish standing to challenge the validity of a warrantless search. 

Minnesota v. Olson, 495 U.S. 91, 98 (1990) (explaining that explained, a person’s “status as an 

overnight guest is alone enough to show that he had an expectation of privacy in the home that 

society is prepared to recognize as reasonable.”); see also United States v. Allen, 720 Fed.Appx. 

254, 257 (6th Cir. 2018) (“People—whether renters, couch surfers, or nomads—have a reasonable 

expectation of privacy in places that function as home.”). The evidence establishes that Defendant

was, at the very least, an overnight guest.

The Government also argues that Defendant lacks standing to contest the search of the 

backpack because Defendant’s fiancé, Jennifer Alston, testified at the suppression hearing that the 

backpack belonged to her. (Doc. 20, PAGEID# 53). However, the only credible evidence is that 
7

the backpack belonged to Defendant. When Sergeant Rager first encountered Defendant, 

Defendant was carrying the backpack on his shoulder. In addition, Officer Martin testified that he 

removed prescription bottles from the backpack, and that these bottles had Defendant’s name on 

them. (Doc. 25, PAGEID# 74).

B. Plain view

“[U]under certain circumstances the police may seize evidence in plain view without a 

warrant.” Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). 

The plain-view exception, however, applies only when “the officer did not violate the Fourth 

Amendment in arriving at the place where the evidence could be plainly viewed.” United States 

v. Taylor, 248 F.3d 506, 512 (6th Cir. 2001).

“Four factors must be satisfied in order for the plain view doctrine to apply: (1) the object 

must be in plain view; (2) the officer must be legally present in the place from which the object 

can be plainly seen; (3) the object's incriminating nature must be immediately apparent; and (4) 

the officer must have a right of access to the object.” United States v. Garcia, 496 F.3d 495, 508 

(6th Cir. 2007).

Defendant does not appear to contest Sergeant Rager’s initial entry into the home. One 

exception to the warrant requirement is “a search that is conducted pursuant to consent.” 

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (citing Davis v. United States, 328 U.S. 582, 

593-94 (1946)). “Consent to enter need not be explicit.” Smith v. City of Wyoming, 821 F.3d 697, 

709 (6th Cir. 2016). It “may be given in the form of words, gesture or conduct.” United States v. 

Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc). “Proof of voluntary consent ‘is not limited 

to proof that consent was given by the defendant,’ but the government ‘may show that permission 

to search was obtained from a third party who possessed common authority over or other sufficient 
8

relationship to the premises.’” Georgia v. Randolph, 547 U.S. 103, 128–29, 126 S. Ct. 1515, 1531, 

164 L. Ed. 2d 208 (2006) (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 

39 L. Ed. 2d 242 (1974)).

Sergeant Rager’s bodycam video shows a young woman opening the door to the house 

and pointing him toward the garage door inside the house. While the initial entry in the house 

does not appear to be a part of Defendant’s Motion, the Court finds for the sake of completeness

that there is sufficient evidence of consent to the initial entry into the home.

The Court now turns to Defendant’s first argument, which is that Sergeant Rager did not 

have consent to search the garage area after his arrest. The Government responds that Sergeant 

Rager was permitted to enter the garage where Defendant was living as part of a protective sweep 

of the area. 

In Maryland v. Buie, the Supreme Court held that officers making arrests in the home are 

permitted to conduct a protective sweep: a “quick and limited search of the premises, incident to 

an arrest and conducted to protect the safety of the police officers and others.” 494 U.S. 325, 327, 

110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). The Court explained that there are two different types of 

justifiable protective sweeps. The first type allows officers to “look in closets and other spaces 

immediately adjoining the place of arrest from which an attack could be immediately launched.” 

Id. at 334. The second type of sweep goes “beyond” immediately adjoining areas but is confined 

to “such a protective sweep, aimed at protecting the arresting officers.” Id. at 334–35. The first 

type of sweep requires no probable cause or reasonable suspicion, while the second requires 

“articulable facts which, taken together with the rational inferences from those facts, would 

warrant a reasonably prudent officer in believing that the area to be swept harbors an individual 

posing a danger to those on the arrest scene.” Id. at 334.
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However, there is nothing in the record which would indicate that Sergeant Rager was 

looking for another person when he re-entered the home to search the garage area. When Sergeant 

Rager arrived on the scene, he was told that the man and woman who had been fighting were in 

the garage. Sergeant Rager encountered Defendant when he opened the garage door. After 

Sergeant Rager arrested Defendant, Sergeant Rager spoke with Alston, who told him that she was 

Defendant’s fiancé and confirmed that they had been the two people fighting in front yard. (Gov’t. 

Exh. 2, at 7:49). After speaking with Alston, Sergeant Rager went back into the house to search 

the garage. There are no facts in the record which would indicate that Sergeant Rager believed 

there was an individual in the area posing a danger to those on the arrest scene.

The Government argues that there was some other risk of danger. Exigent circumstances 

may justify a warrantless entry into a residence. United States v. Morgan, 743 F.2d 1158, 1161 

(6th Cir. 1984). Exigent circumstances “are situations where real immediate and serious 

consequences will certainly occur if a police officer postpones action to obtain a warrant.” United 

States v. Williams, 354 F.3d 497, 503 (6th Cir. 2003) (quoting Ewolski v. City of Brunswick, 287 

F.3d 492, 501 (6th Cir. 2002)). The Sixth Circuit has identified the emergency situations giving 

rise to the exigent circumstances exception requirement as: (1) hot pursuit of a fleeing felon, (2) 

imminent destruction of evidence, (3) the need to prevent a suspect's escape, or (4) a risk of danger 

to the police or others. Williams, 354 F.3d at 503 (citing United States v. Johnson, 22 F.3d 674, 

680 (6th Cir. 1994)). Under the fourth exception, “[o]fficers may enter a home without a warrant 

to render emergency assistance to an injured occupant or to protect an occupant from imminent 

injury.” Schreiber v. Moe, 596 F.3d 323, 329-30 (6th Cir. 2010) (citing Michigan v. Fisher, 558 

U.S. 45, 47 (2009)).
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The Court finds that exigent circumstances did not exist in this case. The scene at the house 

was somewhat chaotic when Sergeant Rager arrived, but there had been no mention of a gun by 

the 911 caller or anyone present in the house. The main source of the chaos at the scene was 

Defendant himself and his refusal to cooperate. However, Sergeant Rager had placed Defendant

in the back of his police vehicle before he went back into the house. Defendant no longer presented 

a risk of danger at that time. Moreover, while the subjective intent of a law enforcement officer is 

irrelevant in determining whether that officer's actions violate the Fourth Amendment, Brigham 

City, Utah v. Stuart, 547 U.S. 398, 404, 126 S. Ct. 1943, 1948, 164 L. Ed. 2d 650 (2006), Sergeant 

Rager testified as to his reasons for returning into the house:

Q. Okay. So knowing the door was -- had been locked, knowing that he had told 

you that he was staying there, you decided to re-enter instead of getting a warrant?

A. Correct.

Q. Why is that? 

A. Because I wanted to see what the bag was, and he stated he was staying at the 

house.

Q. You had other officers on the scene, correct?

A. Correct.

Q. They could have secured the residence and made sure that

the bag, that no one came around the bag?

A. Correct.

Q. And make sure that was not a danger to anybody there?

A. Correct.

Q. But you wanted to see the bag?

A. Correct.

(Doc. 25, PAGEID# 112).
11

The Court finds the resolution of this case lies in a much more straightforward application 

of Fourth Amendment law. In this case, Defendant never expressly refused consent to allow 

Sergeant Rager to search the garage. Alston also did not refuse to allow Sergeant Rager to search

the garage or the backpack. Sergeant Rager’s bodycam footage shows several adults in the house 

at the time of Defendant’s arrest. None of these adults refused to allow Sergeant Rager to search 

the garage. 

In Fernandez v. California, the Supreme Court affirmed the rule that “consent by one 

resident of jointly occupied premises is generally sufficient to justify a warrantless search.” 571 

U.S. 292, 300, 134 S. Ct. 1126, 188 L. Ed. 2d 25 (2014). The Court explained:

. . . the lawful occupant of a house or apartment should have the right to invite the 

police to enter the dwelling and conduct a search. Any other rule would trample on 

the rights of the occupant who is willing to consent. Such an occupant may want 

the police to search in order to dispel “suspicion raised by sharing quarters with a 

criminal.” 547 U.S., at 116, 126 S.Ct. 1515; see also Schneckloth, 412 U.S., at 243, 

93 S.Ct. 2041 (evidence obtained pursuant to a consent search “may insure that a 

wholly innocent person is not wrongly charged with a criminal offense”). And an 

occupant may want the police to conduct a thorough search so that any dangerous 

contraband can be found and removed.

Id. at 307; see also Georgia v. Randolph, 547 U.S. 103, 106 (2006) (“The Fourth Amendment 

recognizes a valid warrantless entry and search of premises when police obtain the voluntary 

consent of an occupant who shares, or is reasonably believed to share, authority over the area in 

common with a co-occupant who later objects to the use of evidence so obtained.”). 

Here, the bodycam video is evidence that the occupants of the house voluntarily consented 

to Sergeant Rager’s search of the garage. While none of the adults in the house verbally agreed to 

the search, the video footage shows them cooperating with Sergeant Rager, answering his 

questions, and stepping out of his way to allow him into the house. Accord United States v. Ortiz, 

455 F. App'x 669, 671–72 (6th Cir. 2012) (finding that under the circumstances, stepping back, 
12

gesturing, and opening the door wider unambiguously conveyed assent). Because Sergeant Rager 

was legally present in the place from which he could plainly see part of a pistol grip, he was 

permitted to seize the evidence under the plain view exception to the warrant requirement. 

Therefore, under the circumstances, Sergeant Rager’s search of the backpack did not violate the 

Fourth Amendment.

III. CONCLUSION

Based on the foregoing, Defendant’s Motion to Suppress (Doc. 17) is DENIED.

IT IS SO ORDERED.

 /s/ Michael R. Barrett _

Michael R. Barrett, Judge

United States District Court