APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 10CR-05-2864).
Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.
Yeura R. Venters, Public Defender, and David L. Strait, for appellant.
(¶ 1} Defendant-appellant, Tommy L. Edwards, appeals from a judgment of the Franklin County Court of Common Pleas convicting him of possession of marijuana. For the following reasons, we affirm the judgment of the trial court.
(¶ 2} Appellant was indicted on one count of possession of marijuana, a fifth-degree felony, in violation of R.C. 2925.11. Appellant filed a motion to suppress the evidence of marijuana seized at his home as well as statements he made to officers after his arrest because he claims they were the result of a search based on a warrant that lacked probable cause. Appellee filed a memorandum in opposition, and the trial court held a hearing on the motion.
(¶ 3} Therein, appellee presented the following evidence. On July 11, 2008, Sergeant Duane Mabry of the Columbus Division of Police was assigned to the "Zone 2 summer strike force initiative" when he received a phone call from another officer, asking him to draft a search warrant for 3178 Weirton Drive. (Nov. 7, 2011 Motion Tr., 8.) According to Mabry, after receiving information that drugs were being sold out of that residential address, officers began surveilling the house. Mabry stated on three occasions that individuals were observed entering the home and leaving after staying only a few minutes. Mabry stated this behavior was consistent with "drug activity at a drug house." (Tr. 11.) According to Mabry, officers at the scene conducted traffic stops on all three individuals and recovered over eight pounds of marijuana.
(¶ 4} According to Mabry, an hour later, Jimmy Berry was stopped after leaving the Weirton Drive location and in Berry's possession was a gun, two pounds of marijuana, and a digital scale. Mabry testified Berry told officers he was sent to the home on Weirton Drive by appellant and instructed to "clean the house out." (Tr. 13.) Based on the encounter with Berry, officers entered the home to prevent the destruction of evidence, insured evidence was not being destroyed, left the home, and waited for Mabry's arrival. According to Mabry, he finished drafting the warrant for Weirton Drive, had a judge sign it, and executed the warrant at 9:35 a.m.
(¶ 5} Detective Ty Downard is a narcotics detective for the Reynoldsburg Police Department and was assigned to investigate appellant's home at 220 Chatterly Lane. According to Downard, the Reynoldsburg Police Department received an anonymous tip on January 16, 2008, that appellant was selling "pounds of marijuana" on the east side of Columbus and Reynoldsburg and resided at 220 Chatterly Lane. (Tr. 32.) He further testified that "sometime later" the Columbus Police Department informed him of the surveillance and search of the Weirton Drive residence, as well as Berry's statement to police that appellant had instructed him to pick up marijuana from the Weirton Drive location and that appellant has sold marijuana for years. (Tr. 32.) After receiving the above tip and information, Downard stated he began conducting trash pulls at appellant's home. According to Downard, the first trash pull occurred on September 19, 2008, and he collected what appeared to be marijuana stems, seeds, and "shake." (Tr. 34.) According to Downard, he field tested the stems and seeds and it came back positive for marijuana.
(¶ 6} Downard testified he conducted surveillance on September 21, 2008 and observed appellant exit and enter the residence. Downard stated appellant's vehicle was registered to the 220 Chatterly Lane address. According to Downard, he conducted a second trash pull on September 26, 2008 and discovered marijuana stems and seeds, four roaches, and a letter of residence for 220 Chatterly Lane connecting the trash to appellant. Based on all of the above information and appellant's criminal history,  Downard obtained a search warrant for narcotics.
(¶ 7} The suppression hearing concluded with closing statements. Appellant argued both of the search warrants were not "particularized enough to be sufficient" and were overbroad. (Tr. 50.) Specifically, appellant argued that the Weirton Drive warrant failed because the premises were "searched" ahead of time, and the Chatterly Lane warrant failed because its probable cause justification was based off information obtained at Weirton Drive. Appellant further argued the Chatterly Lane warrant was intentionally misleading. In opposition, appellee argued exigent circumstances existed for the protective sweep at the Weirton Drive home and that the warrants did not contain misleading information. Finally, appellee argued, based on all the evidence presented, there was probable cause for each warrant.
(¶ 8} The trial court denied appellant's motion to suppress and held that probable cause existed for the issuance of both search warrants. The court reasoned probable cause was established for the Weirton Drive warrant when officers set up surveillance and within hours had stopped four individuals who visited the home and collected over ten pounds of marijuana. The trial court also held that, based on Berry's statements, the doctrine of exigencies applied and justified the officers' initial protective sweep of the Weirton Drive home prior to obtaining and executing a search warrant.
(¶ 9} The trial court held probable cause also existed for the Chatterly Lane home search, reasoning that, though each fact in the warrant individually would not be enough to satisfy probable cause, the totality of the facts alleged were sufficient.
(¶ 10} Appellant filed a second motion to suppress, alleging the statements he made to Sergeant Shane Mauger of the Reynoldsburg Police Department after the search of his residence were taken in violation of his constitutional rights. Appellee filed a memorandum in opposition, and the trial court held a hearing on the motion.
(¶ 11} At the second hearing, appellee presented the testimony of Mauger and Downard. According to Mauger, he conducted a tape recorded interview of appellant at his home while the search was coming to a close. Mauger testified that he advised appellant of his constitutional rights prior to any questioning. Mauger stated appellant must have indicated he understood his rights or he would not have continued with the interview. Appellant's response to Mauger's question, "[d]o you understand your rights" was inaudible on the audio tape. The suppression hearing concluded with closing arguments.
(¶ 12} The trial court denied appellant's motion holding "[b]ased on the totality of these circumstances I find that the Defendant indicated that he understands his rights." (Tr. 165.) The holding was based on Mauger's testimony that he would not have continued with questioning if appellant had not in some way indicated he understood his rights and that, from the court's own interactions with appellant, he is an intelligent man who "is not shy about either invoking his rights or speaking his mind when he chooses to." (Tr. 165.) Having overruled both of appellant's motions to suppress, the case continued to trial.
(¶ 13} Relevant to this appeal, the following evidence was adduced from the appellee's case-in-chief Mauger was the team leader for the September 30, 2008 search of Chatterly Lane. According to Mauger, SWAT approached the home and knocked and announced their intention to enter. Once SWAT entered the home, Mauger testified his team secured the location and began executing the search warrant. Mauger stated he seized a "Wal-Mart bag" containing nine smaller bags of marijuana, a digital scale, baggies, and a letter of residence connecting the trash to appellant's home. (Tr. 233.)
(¶ 14} Appellee's final witness was Shervonne Bufford, a forsensic drug chemist employed by the Ohio Attorney General's Office Bureau of Criminal Investigation. According to Bufford, she tested and weighed what officers assumed was marijuana seized at appellant's home. Bufford stated she used the "[h]ypergeometric sampling" method in testing for the presence of marijuana in the nine bags which, in this case, resulted in her testing seven of the nine bags for the presence of marijuana. (Tr. 261.) According to Bufford, the hypergeometric sampling method is a commonly accepted practice in the scientific field and only requires the testing of a specific amount of the sample and then applies those results to the untested remainder, as long as the untested remainder is "homogenous" ...