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State v. Duvernay

Court of Appeals of Ohio, Third District, Allen

June 12, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
ANTHONY J. DUVERNAY, DEFENDANT-APPELLANT.

         Appeal from Allen County Common Pleas Court Trial Court No. CR 2015 0418

          Jason N. Flower and Tabitha L. Stewart for Appellant

          Jana E. Emerick for Appellee

          OPINION

          PRESTON, P.J.

         {¶1} Defendant-appellant, Anthony J. Duvernay ("Duvernay"), appeals the December 5, 2016 judgment entry of sentence of the Allen County Court of Common Pleas. He argues that the trial court erred in denying his motions to suppress evidence. For the reasons that follow, we affirm.

         {¶2} This case stems from an investigation conducted by the Lima/Allen County Interdiction Task Force ("Task Force") of Duvernay and Duvernay's co-defendant, Marvin Thomas, Sr. ("Thomas"), for drug-related activity. The Task Force received multiple tips in the spring of 2015 that Thomas was engaging in drug-related activity, and, as a result, the Task Force obtained a search warrant for a GPS monitoring device for Thomas's vehicle. (Feb. 22, 2016 Tr. at 5). The Task Force also installed on May 29, 2015 a video camera on a utility pole-commonly referred to as a "pole camera"-located near Thomas's residence. (Id. at 5, 7). "[T]hrough the use of watching that camera, " the Task Force suspected Duvernay was involved in the same drug-related activity as Thomas. (Id. at 6). Based on that suspicion, the Task Force began investigating Duvernay by obtaining search warrants on September 9 and 23, 2015 for GPS monitoring devices for Duvernay's vehicles and installing on October 6, 2015 a pole camera down the road from Duvernay's residence. (Id. at 6-7); (Apr. 11, 2016 Tr. at 37-38).

         {¶3} On October 23, 2015, the Allen County Grand Jury indicted Duvernay on: Count One of possession of heroin in violation of R.C. 2925.11(A), (C)(6)(f), a first-degree felony, with a major drug offender ("MDO") specification under R.C. 2941.1410(A) and four automobile-forfeiture specifications under R.C. 2941.1417(A); Count Two of trafficking in heroin in violation of R.C. 2925.03(A)(2), (C)(6)(g), a first-degree felony, with a MDO specification under R.C. 2941.1410(A) and four automobile-forfeiture specifications under R.C. 2941.1417(A); Count Three of illegal manufacture of drugs in violation of R.C. 2925.04(A), (C)(2), (E), a second-degree felony, with a MDO specification under R.C. 2941.1410(A) and four automobile-forfeiture specifications under R.C. 2941.1417(A); and Count Four of engaging in a pattern of corrupt activing in violation of R.C. 2923.32(A)(1), (B)(1) and 2929.14(B)(3), a first-degree felony, with four automobile-forfeiture specifications under R.C. 2941.1417(A). (Doc. No. 1). On October 28, 2015, Duvernay pled not guilty to the counts and specifications of the indictment. (Doc. Nos. 8, 138).

         {¶4} On January 8, 2016, Duvernay filed a motion to suppress evidence obtained from the October 15, 2015 search-warrant execution at Duvernay's residence. (Doc. No. 30). Specifically, Duvernay requested the suppression of that evidence because the evidence used to establish probable cause for the search warrant was obtained through an illegal, warrantless search-that is, Duvernay argued that the installation and operation of the pole camera outside of Duvernay's residence violated his Fourth Amendment right to privacy. (Id.). On January 22, 2016, Duvernay filed a second motion to suppress evidence "obtained pursuant to a GPS search warrant[s]" because the search warrants issued for the GPS tracking devices were granted without sufficient evidence of probable cause. (Doc. No. 34). The State filed its response to Duvernay's first motion to suppress evidence on February 12, 2016. (Doc. No. 43). After a hearing on February 22, 2016, the trial court denied Duvernay's first motion to suppress evidence. (Doc. No. 44). After a hearing on April 11, 2016, the trial court denied Duvernay's second motion to suppress evidence. (Doc. No. 60).

         {¶5} On December 2, 2016, Duvernay withdrew his pleas of not guilty and entered pleas of no contest to Count One of the original indictment, to an amended Count Four, and to the specifications. (Doc. No. 138). In exchange for his change of pleas, the State agreed to amend Count Four "to omit 2929.14(B)(3) allegation [sic] that the most serious offense in the pattern of corrupt activity was a felony of the first degree, " dismiss Counts Two and Three, and enter a joint-sentencing recommendation. (Doc. No. 137). The trial court accepted Duvernay's pleas of no contest, found him guilty of the counts and the MDO specification, and proceeded to sentencing. (Doc. Nos. 138, 139). The trial court sentenced Duvernay to 11 years in prison on Count One and 7 years in prison on Count Four, and ordered that Duvernay serve the terms consecutively for an aggregate sentence of 17 years. (Doc. No. 139). The trial court further ordered that Duvernay's "interest in each of the FOUR (4) vehicles listed on the indictment * * * forfeited." (Id.). The trial court filed its judgment entries of conviction and sentence on December 5, 2016. (Doc. Nos. 138, 139).

         {¶6} Duvernay filed a notice of appeal on December 27, 2016. (Doc. No. 144). He raises two assignments of error for our review, which we discuss together.

         Assignment of Error No. I

         The Common Pleas Court of Allen County, Ohio, Judge Reed, erred in overruling Appellant's, Anthony Duvernay's Motion to Suppress the evidence obtained from the pole camera placed by the Lima Police Department, to monitor Appellant's home.

         Assignment of Error No. II

         The Common Pleas Court of Allen County, Ohio, Judge Reed, erred in overruling Appellant, Anthony Duvernay's Motion to Suppress, as the evidence obtained from the GPS tracker placed on Appellant's vehicle, was fruit of the poisonous tree.

         {¶7} In his assignments of error, Duvernay argues that the trial court erred by denying his motions to suppress evidence. In his first assignment of error, Duvernay argues that, "[s]ince the Lima Police Department videotaped [Duvernay's] garage, an area that does fall within the curtilage of Appellant's home, the evidence obtained from the illegal search should be suppressed." (Appellant's Brief at 14). In his second assignment of error, Duvernay argues that there was insufficient evidence of probable cause to issue the search warrants for the GPS tracking devices to be installed on his vehicles because it, in part, was based on information obtained from an illegal search-that is, Duvernay ...


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