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State v. Miller

Court of Appeals of Ohio, Fifth District

June 21, 2013

STATE OF OHIO Plaintiff-Appellee
v.
DALE MILLER Defendant-Appellant

Appeal from the Guernsey County Court of Common Pleas, Case No. 11 CR 82

For Plaintiff-Appellee DANIEL G. PADDEN Prosecuting Attorney

For Defendant-Appellant MELISSA M. PRENDERGAST Assistant State Public Defender

Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.

OPINION

HON. CRAIG R. BALDWIN

{¶1} Defendant-appellant Dale Miller appeals from the denial by the Guernsey County Court of Common Pleas of his Motion to Suppress. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On August 11, 2011, the Guernsey County Grand Jury indicted appellant on one count of aggravated trafficking in drugs in violation of R.C. 2925.03(C)(1)(a), a felony of the fourth degree, and one count of having weapons while under disability in violation of R.C. 2923.13, a felony of the third degree. At his arraignment on August 22, 2011, appellant entered a plea of not guilty to the charges contained in the indictment.

{¶3} Thereafter, on October 12, 2011, appellant filed a Motion to Suppress all evidence seized from the search of his residence, including firearms and drugs. Appellant, in his motion, alleged that the affidavit upon which the search warrant was based lacked probable cause and that, therefore, the search warrant must be invalidated. Appellant filed two supplements to his motion.

{¶4} A hearing on appellant's Motion to Suppress was held on October 31, 2011 and November 4, 2011. At the hearing, Sergeant Mark Baker of the Cambridge Police Department testified that he was a narcotics investigator. He testified that shortly after taking the position in March of 2011, he began investigating Robert Miller, appellant's son. He began his investigation on or about May 25, 2011. The Sergeant testified that he believed that Robert Miller resided at 522 Whitaker Avenue in Cambridge with appellant.

{¶5} Sergeant Baker testified that, on May 26, 2011, he met with Chelsea Neff who had been introduced to him by the Guernsey County Sheriff's Department. Neff told him that she was a recovering addict and had bought Percocet from Robert Miller in the past at his residence. Neff did not know the exact address where Miller resided, but based on her description, the Sergeant looked up the address and, when he drove by the Whitaker Avenue address with Neff, she indicated that the 522 Whitaker Avenue address was correct. Neff told Sergeant Baker that they had firearms in the house.

{¶6} When asked, Sergeant Baker testified that Neff had never worked for him in the past, but that she had successfully worked as a confidential informant for the Guernsey County Sheriff's Department. He testified that on May 26, 2011, Neff told him that she could act as a confidential informant for him and told him that she was addicted to drugs again and that the only way to stop using them was to get her supplier busted. The Sergeant then decided to use Neff as a confidential informant. He testified that in exchange for her assistance, Neff received no consideration and signed a written agreement to such effect.

{¶7} At the time he met with Neff on May 26, 2011, Sergeant Baker was aware that she had been investigated by Detective Jeff Paden of the Guernsey County Sheriff's Office and had recently been released from jail. He testified that she had been in jail for taking eight (8) of her brother's guns and that it was his understanding that no charges were going to be pursued.. Sergeant Baker testified that once he was informed that she was not going to be charged, he decided to use Neff as an informant. Such information was not contained in the affidavit in support of the search warrant. Sergeant Baker further testified that he was unaware, when seeking a search warrant, that Neff also was suspected of stealing a gun from John Blair, Jr.

{ΒΆ8} When questioned, Sergeant Baker indicated that he was aware that Neff had been charged with possession of drugs in Tuscarawas County. He testified that he did not include such information in the affidavit in support of the ...


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