APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 12 03 0697 (A).
SHUBHRA N. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
(¶1} Defendant-Appellant, Benjamin Eader, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms in part and reverses in part.
(¶2} On February 29, 2012, the contents of a garbage truck servicing Newcastle Drive caught fire directly after the truck collected the trash from 725 Newcastle Drive. The garbage truck driver emptied the contents of the garbage truck onto the street and contacted the Akron Fire Department. Subsequently, Officer Adam Lemonier responded to the scene and searched the area of the garbage pile that the fire department had identified as the source of the fire. The search uncovered two-liter reaction bottles, rubber gloves, pseudoephedrine blister packets, strict lithium, acid gas generators, cold packs, and burned cans of Coleman fuel. In one particular bag that had remained closed and intact in spite of the fire, Officer Lemonier found rubber gloves, pseudoephedrine blister packs, and mail addressed to Eader at 725 Newcastle Drive. He then obtained a warrant to search 725 Newcastle Drive based on his belief that methamphetamine was being manufactured there. The search of the residence uncovered multiple firearms, several components of methamphetamine production, and $5, 400 in cash.
(¶3} A grand jury indicted Eader on each of the following counts: (1) illegal manufacturing of methamphetamine, in violation of R.C. 2925.04(A); (2) illegal assembly or possession of chemicals for the manufacturing of methamphetamine, in violation of R.C. 2925.041(A); (3) having weapons while under disability, in violation of R.C. 2923.13(A)(3); and (4) aggravated possession of drugs, in violation of R.C. 2925.11(A)(C)(1). The indictment also contained two forfeiture specifications for the $5, 400, pursuant to R.C. 2941.1417.
(¶4} Eader filed a motion to suppress, and the trial court held a hearing on the motion. Subsequently, the trial court denied Eader's motion, and Eader pleaded no contest to all of the counts and specifications in the indictment. The court sentenced Eader to a total of five years in prison, a mandatory fine in the amount of $7, 500, and costs and attorney fees. The court also ordered the forfeiture of the $5, 400.
(¶5} Eader now appeals from his convictions and raises seven assignments of error for our review. For ease of analysis, we combine several of the assignments of error.
Assignment of Error Number One
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN PLACING THE BURDEN OF PROOF TO DEMONSTRATE A VIOLATION OF HIS RIGHTS ON EADER AT THE HEARING ON HIS MOTION TO SUPPRESS.
Assignment of Error Number Two
EADER WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE STATE BEARS THE BURDEN OF PROOF AT THE SUPPRESSION UPON PROPER MOTION BY A DEFENDANT.
(¶6} In his first assignment of error, Eader argues that the trial court erred by placing the burden of proof at the suppression hearing upon him rather than the State. In his second assignment of error, he argues that his trial counsel was ineffective for not objecting to the court's error regarding the burden of proof at the suppression hearing. We disagree with both propositions.
(¶7} The placement of the burden of proof at the suppression stage depends upon the nature of the search at issue; that is, whether or not the search was conducted pursuant to a warrant.
Where a search is established to be warrantless, the burden of persuasion is on the state to show the validity of the search. Where, however, the search is conducted under the authority of a warrant, the one challenging the search has the burden of showing the warrant was not based on probable cause, or was invalid in some other way.
(Internal citations omitted.) State v. Perez, 9th Dist. Lorain No. 89CA004611, 1990 WL 73636, *2 (May 30, 1990). Accord State v. Smith , 9th Dist. Summit No. 21069, 2003-Ohio-1306, ¶ 15.
(¶8} Eader argues that the trial court committed reversible error at the suppression hearing by placing the burden of proof on him and forcing him to call Officer Lemonier as a witness for the defense. Eader points this Court to several cases as support for the proposition that the State bears the burden of proof at the suppression stage. All of the cases Eader cites, however, are cases involving warrantless searches. See State v. Martin, 9th Dist. Summit No. 24812, 2009-Ohio-6948; Cleveland v. Tedor, 8th Dist. Cuyahoga No. 59461, 1990 WL 156075 (Oct. 18, 1990); State v. Gasser, 5 Ohio App.3d 217 (3d Dist.1980). There is no dispute that the police searched 725 Newcastle Drive pursuant to a search warrant.
(¶9} At the suppression hearing, the State produced copies of (1) the search warrant for 725 Newcastle Drive, (2) the affidavit upon which the warrant was issued, and (3) the inventory of items that resulted from the search. Only then did the trial court indicate that the defense should present its evidence. Because Eader sought to challenge a search conducted under the authority of a warrant, he bore the burden "of showing the warrant was not based on probable cause, or was invalid in some other way." Perez at *2. The record does not support Eader's argument that the ...