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State v. Kilbarger

Court of Appeals of Ohio, Second District

June 21, 2013

STATE OF OHIO Plaintiff-Appellee
v.
A. J. KILBARGER, JR. Defendant-Appellant

Criminal Appeal from (Common Pleas Court) Trial Court Case No. 2010-CR-3114/2

MATHIAS H. HECK, JR., by APRIL F. CAMPBELL, Attorney for Plaintiff-Appellee

BRYAN K. PENICK, Attorney for Defendant-Appellant

OPINION

HALL, J.,

{¶ 1} A.J. Kilbarger appeals from his conviction and sentence on charges of possessing cocaine and marijuana.

{¶ 2} Kilbarger advances two assignments of error on appeal. First, he contends the trial court erred in denying his pre-trial suppression motion on the basis that a search-warrant affidavit containes false or misleading statements or material omissions in violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Second, he claims the trial court erred in finding that the affidavit established probable cause for a search warrant.

{¶ 3} The record reflects that Kilbarger was indicted on the above charges as well as drug trafficking and engaging in a pattern of corrupt activity. The evidence against him was obtained through execution of a search warrant at his home. Agent Charlie Stiegelmeyer of the Ohio Bureau of Criminal Investigation obtained the warrant by presenting the issuing judge with a probable-cause affidavit. Following his indictment, Kilbarger moved to suppress the evidence. He argued that Stiegelmeyer's affidavit contained false or misleading statements or material omissions in violation of Franks. He also asserted that the affidavit failed to establish probable cause even absent a Franks violation.

{¶ 4} The trial court held a December 2, 2011 hearing on the Franks issue. At the conclusion of the hearing, it held that Kilbarger had "failed to make a preliminary showing by a preponderance of the evidence that the affiant, with an intent to mislead, either excluded crucial information from the affidavit or provided false or misleading information in the affidavit." (Franks Tr. at 109). Therefore, the trial court found no viable Franks issue and overruled that portion of the suppression motion. (Doc. #112). It separately concluded that Stiegelmeyer's affidavit established probable cause for a search warrant and overruled the remainder of the suppression motion. (Doc. #121). The trial court later denied reconsideration of its Franks ruling. (Doc. #138, 141). At trial, a jury acquitted Kilbarger on the drug-trafficking and corrupt-activity charges but found him guilty of possessing cocaine and marijuana. The trial court imposed an aggregate two-year prison sentence. (Doc. #219). This appeal followed.

{¶ 5} As a means of analysis, we turn first to Kilbarger's second assignment of error. There he contends the trial court erred in finding that Stiegelmeyer's affidavit justified the issuance of a warrant to search his residence for drugs.[1] Kilbarger asserts (1) that the affidavit failed to establish probable cause and (2) that any information related to the presence of drugs in his house was stale.

{¶ 6} "In determining the sufficiency of probable cause in an affidavit submitted in support of a search warrant, '[t]he task of the issuing magistrate is simply 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.'" State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph one of the syllabus, quoting Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

{¶7} "In reviewing the sufficiency of probable cause in an affidavit submitted in support of a search warrant issued by a magistrate, neither a trial court nor an appellate court should substitute its judgment for that of the magistrate by conducting a de novo determination as to whether the affidavit contains sufficient probable cause upon which that court would issue the search warrant." Id. at paragraph two of the syllabus. "Rather, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In conducting any after-the-fact scrutiny of an affidavit submitted in support of a search warrant, trial and appellate courts should accord great deference to the magistrate's determination of probable cause, and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant." Id.

{¶ 8} With the foregoing standards in mind, we hold that the issuing judge had a substantial basis for finding probable cause to believe drugs would be found inside Kilbarger's home at 508 West Sherry Street in Trotwood. In his June 21, 2010 affidavit, Stiegelmeyer recited his nearly three decades of law-enforcement experience, including fourteen years performing narcotics investigations. (Stiegelmeyer affidavit at ¶1). He then averred that in October 2009 he received information from a confidential informant ("CI") regarding the drug-trafficking activities of McCartney and Kilbarger. (Id. at ¶2). The CI advised him that McCartney and Kilbarger "are large cocaine and marijuana traffickers operating in the Montgomery County area." (Id. at ¶3). The CI stated that McCartney led the operation and that Kilbarger helped distribute the drugs. (Id.). The CI also told Stiegelmeyer that McCartney "uses property owned by Kilbarger and others to conceal assets and narcotics from authorities." (Id.). According to the affidavit, the CI "has been proven credible and reliable by making controlled purchases of narcotics" and by "providing information, which was later verified to be true through independent investigative methods by Affiant." (Id. at ¶2).

{¶ 9} Stiegelmeyer described an October 2009 controlled buy during which he worked undercover with the CI and purchased a pound of marijuana from McCartney. (Id. at ¶5). He recounted a similar incident in April 2010 where the CI participated in a controlled buy and purchased an ounce of cocaine from McCartney. (Id. at ¶6). Although these drug buys involved McCartney rather than Kilbarger, they nevertheless helped establish the CI's veracity.

{¶ 10} Thereafter, in May 2010, the CI advised Stiegelmeyer that Kilbarger owned a home at 508 West Sherry Street. The CI "stated that McCartney and Kilbarger use this residence to store narcotics and contraband and the CI has been to this residence in the past to purchase narcotics from McCartney and Kilbarger." (Id. at ¶7). On appeal, Kilbarger correctly points out the CI's failure to specify when he had purchased drugs at 508 West Sherry Street. We note, however, that Stiegelmeyer's rendition of what the CI said was in the present tense ...


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