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State v. Harry

December 8, 2008

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
DEMARIAN JAVON HARRY, DEFENDANT-APPELLANT.



CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2007-06-0910.

The opinion of the court was delivered by: Young, J.

OPINION

{¶1} Defendant-appellant, DeMarian Javon Harry, appeals the decision of the Butler County Court of Common Pleas convicting him of possession and trafficking of marijuana with firearm specifications. We affirm in part, and reverse in part, the decision of the trial court.

{¶2} Acting on information from confidential informants, their own surveillance, and an anonymous complainant, Butler County Sheriff's deputies obtained a search warrant for 225 Cereal Avenue, Hamilton, Ohio, to search for, inter alia, drugs, drug related paraphernalia, and weapons. Upon executing that warrant, they located appellant and five others, within the home, along with approximately 55 pounds of marijuana, more than $15,000 in cash, ledgers, scales, zip-lock plastic bags, and four firearms.

{¶3} Appellant filed a motion to suppress the evidence seized pursuant to the search warrant. The trial court denied the motion to suppress based on the "good faith" exception to the exclusionary rule as articulated in United States v. Leon (1984), 468 U.S. 897, 104 S.Ct. 3405. After a jury trial, appellant was found guilty of trafficking in marijuana in violation of R.C. 2925.03(A)(2) and possession of marijuana in violation of R.C. 2925.11, both of which included a firearm specification. As a result, appellant was sentenced to 11 years in prison. Appellant now appeals his conviction and sentence raising five assignments of error.

{¶4} Assignment of Error No. 1

{¶5} "THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED FROM THE RESIDENCE WHERE HE WAS SPENDING THE NIGHT AS AN INVITED GUEST, IN VIOLATION OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND PARALLEL OHIO CONSTITUTIONAL PROVISIONS."

{¶6} Appellant argues that the trial court erred in denying his motion to suppress because the affidavit did not supply timely information required for probable cause and did not supply facts for the issuing judge to assess the reliability of the informants or make an independent determination of probable cause. Appellant further argues that the warrant cannot be saved by the good faith exception to the exclusionary rule. We find no merit to appellant's argument.

{¶7} Appellate review of a trial court's ruling on a motion to suppress is a mixed question of law and fact. State v. Long (1998), 127 Ohio App.3d 328, 332. During proceedings on a motion to suppress, the trial court assumes the role of a trier of fact. Id. The trial court is thus responsible for evaluating the evidence and the credibility of the witnesses and its findings should be accepted unless they are clearly erroneous. Id. A reviewing court must accept a trial court's factual determinations from a suppression hearing "so long as they are supported by competent and credible evidence." Id. "The application of the law to those facts, however, is then subject to a de novo standard of review." Id.

{¶8} When reviewing an affidavit in support of a search warrant neither the trial court nor the appellate court should substitute their judgment in the place of the issuing judge by determining whether there was sufficient probable cause to issue the warrant. State v. Dunihue, 161 Ohio App.3d 731, 733-734, 2005-Ohio-3223, ¶6 citing, State v. George (1989), 45 Ohio St.3d 325, paragraph two of the syllabus. A reviewing court need only ensure that the issuing judge had "a substantial basis for concluding that probable cause existed." Id. Furthermore, upon review a court must afford deference to the issuing judge's determination and any doubt "should be resolved in favor of upholding the warrant." Id. Therefore, the question before a reviewing court is whether, under a totality of the circumstances, the affidavit, which served as the basis for the search warrant, provided a "substantial basis" for the issuing judge to conclude that there was a "fair probability" that marijuana, drug paraphernalia, documents, monies, weapons, etc. would be found at 225 Cereal Avenue. George at 330.

{¶9} After a warrant is found to be defective, some federal courts have found that a court may immediately apply the good faith exception to the exclusionary rule. See, e.g., United States v. Cancelmo (C.A.2, 1995), 64 F.3d 804, 807; United States v. Satterwhite (C.A.5, 1992), 980 F.2d 317, 320. However, the courts in this state have applied a two-step approach to the affidavit in support of a search warrant analysis. George, 45 Ohio St.3d at 332. A reviewing court must first determine that the affidavit, on which the search warrant was based, provided a "substantial basis" for the issuing judge to conclude that there was a "fair probability" that the person or thing to be seized would be at the place to be searched. Id. Only after that determination, may a reviewing court then advance to the good faith exception to the exclusionary rule. Id. Indeed, "even though it might [seem] * * * unnecessary to determine the existence of probable cause, it is always necessary to determine whether there is any reasonable argument to support probable cause." State v. Reniff, 146 Ohio App.3d 749, 2001-Ohio-4353, ¶26. Were a reviewing court to immediately apply the good faith exception to the exclusionary rule, rather than following the first step in the analysis, it would undermine the importance of the Fourth Amendment's protections.

{¶10} In this case, the trial court did not determine whether probable cause existed. Instead, the trial court found that the good faith exception applied to the sheriff's search of 225 Cereal Avenue. We find that based on Ohio law, the existence of probable cause must be the starting point for any analysis. Because we find that the issuing judge had a substantial basis for concluding that probable cause existed, we find it unnecessary to determine whether the trial court's good faith analysis was correct.

{¶11} Appellant focuses the first part of his argument on: (1) the timeliness of the information contained within the affidavit; and (2) the sufficiency of nexus between the evidence sought and the place searched.

{¶12} The law of search and seizure requires that an affidavit demonstrate that the information is timely. State v. Jones (1991), 72 Ohio App.3d 522, 526. The facts must be closely related to the time the warrant is issued in order to justify probable cause. Id., citing Sgro v. United States (1932), 287 U.S. 206, 210, 53 S.Ct. 138. These facts are examined on a case by case basis. Id. at 526. "While there is no arbitrary time limit on how old information can be, the alleged facts must justify the conclusion that the subject contraband is probably on the person or premises to be searched." Id. citing State v. Yanowitz (1980), 67 Ohio App.2d 141, 147.

{¶13} Intermittent occurrences may not be considered timely, but "a pattern of conduct" or indications of an "ongoing investigation," even where older information is concerned, can be found to be timely. Id.; State v. Prater, Warren App. No. CA2001-12-114, 2002-Ohio-4487, ¶13. "In determining whether information in an affidavit is stale, courts should consider: (1) the character of the crime; (2) the criminal; (3) the thing to be seized, as in whether it is perishable and easily transferable or of enduring utility to its holder; (4) the place to be searched; and (5) whether the information in the affidavit relates to a single isolated incident or protracted ongoing criminal activity." Prater at ¶13.

{¶14} In this case, the affidavit stated that within the past two months the sheriff's office had received information from both a reliable confidential informant and the DEA that marijuana was being transported from Phoenix, Arizona to Hamilton, Ohio and co-defendant Jeffrey Craft was receiving the shipments. The affidavit also stated that an anonymous complainant informed the sheriff's office that within the past 72 hours a shipment of marijuana was brought to Hamilton from Phoenix and was being stored at 225 Cereal Avenue. The police also conducted surveillance activity within that 72-hour period, and within three hours of the warrant's issue, observed vehicles belonging to Craft and his relatives, parked outside 225 Cereal Avenue. These facts indicate that there was an ongoing investigation of the home, and the parties involved, which spanned at least two months.

{¶15} Finally, trafficking is a crime where there is constant movement of drugs as they are often portable and easily transferable. United States v. Chapman (C.A.6, 2004), 112 Fed Appx. 469, 473. Therefore, when evidence is determined to show that drugs will be at a place at a particular time, the police may have to act quickly before the drugs are moved and/or sold. The affidavit clearly presented enough timely information to suggest that the marijuana would be located at 225 Cereal Avenue and provided a substantial basis for the issuing judge to believe that the drugs were located in the residence.

{¶16} Closely related to the issue of timeliness is the condition of Crim.R. 41(C) which requires that there be a "nexus" between the place to be searched and the items to be seized. State v. O'Conner, Butler App. No. CA2001-08-195, 2002-Ohio-4122, ¶10; State v. King, Butler App. No. CA2008-03-085, 2008-Ohio-5840; United States v. Carpenter (C.A.6, 2004), 360 F.3d 591, 594. In other words, the affidavit must state specific facts that show that the evidence sought would be found at 225 Cereal Avenue. See Carpenter at 594.

{¶17} In particular, the affidavit stated that a reliable confidential informant notified the sheriff's office that marijuana was being stored and sold from a house in West Hamilton, and tied the receipt of the marijuana to co-defendant Craft. The affidavit also had information from the DEA tying Craft to the residence through a truck rented by Craft's relative.*fn1 Also contained within the affidavit were statements from confidential informants, anonymous complainants and suspects arrested on other charges connecting co-defendant Craft with a "marijuana operation" and that Craft was storing drugs at homes belonging to both Craft and his relatives. Finally, the affidavit noted that an anonymous complainant contacted the sheriff's office and said marijuana was being stored at 225 Cereal Avenue, which was later found to be owned by Craft's relative. Therefore, there was a sufficient nexus connecting 225 Cereal Avenue to the marijuana, drug paraphernalia, documents, monies, weapons, etc. sought by the warrant; and a substantial basis for the issuing judge to believe that the drugs were located at the residence.

{¶18} Finally, appellant argues there were insufficient facts the issuing judge could use to assess informant reliability, and make an independent determination of probable cause.

We find that there was sufficient information within the affidavit for the issuing judge to evaluate the reliability of the informants and find probable cause.

{¶19} With the adoption of the Gates "totality of the circumstances" test, a judge issuing a search warrant is required "to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates (1983), 462 U.S. 213, 238-39, 103 SCt. 2317 (internal quotations and a citation omitted). Additionally, Crim.R. 41(C) allows an issuing judge to find probable cause "on hearsay in whole or in part, provided there is a substantial basis for believing the source of hearsay to be credible and for believing that there is a factual basis for the information." See, also, State v. Sharp (1996), 109 Ohio App.3d 757, 760.

{ΒΆ20} Where a confidential or anonymous informant is the source of the hearsay, the "informant's veracity, reliability and basis of knowledge are all highly relevant" in a totality of the circumstances probable cause determination. Gates at 230 (internal quotations omitted). There must be some basis in the affidavit to indicate the informant's credibility, honesty or reliability. Sharp at 760. An affidavit which contains detailed information from informants (permitting an inference that illegal activity was personally observed by the informants), police corroboration of an informant's intelligence through its own independent investigation, or additional testimony by the affiant helps to bolster and substantiate the facts contained within the affidavit. State v. Ingram (Sept. 26, 1994) Butler App. No. CA94-03-076, at 4-5; State v. Rodriguez (1989), 64 Ohio App.3d 183, 188. While individual facts and statements themselves may not separately support a probable cause determination; a reviewing court must weigh all of the ...


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