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State v. Thomas

Court of Appeals of Ohio, Third District, Allen

June 19, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
MARVIN L. THOMAS, DEFENDANT-APPELLANT.

         Appeal from Allen County Common Pleas Court Trial Court No. CR 2015 0417

          Dustin M. Blake for Appellant

          Jana E. Emerick for Appellee

          OPINION

          PRESTON, P.J.

         {¶1} Defendant-appellant, Marvin L. Thomas ("Thomas"), appeals the June 13, 2016 judgment entry of sentence of the Allen County Court of Common Pleas. For the reasons that follow, we affirm.

         {¶2} This case stems from a drug investigation that began as early as September of 2014, when Thomas was seen engaging in what authorities suspected was drug activity. Several tips caused authorities to further focus their attention on Thomas and, between the early months of 2015 and October of the same year, authorities kept Thomas under extensive surveillance. This included monitoring his residence via video, as well as conducting numerous searches of trash that Thomas had set by his curb for collection. A GPS tracking device was placed on Thomas's vehicle. Through these various methods of surveillance, authorities recovered multiple samples of narcotics, as well as paraphernalia commonly used by those trafficking in narcotics. Authorities also observed multiple instances of drug transactions and contacts between Thomas and drug traffickers, both at Thomas's home and elsewhere. After many months of investigation, authorities arrested Thomas on October 15, 2015.

         {¶3} On October 23, 2015, the Allen County Grand Jury indicted Thomas on Count One of possession of heroin in violation of R.C. 2925.11(A), (C)(6)(f), a felony of the first degree, Count Two of trafficking in heroin in violation of R.C. 2925.03(A)(2), (C)(6)(g), a felony of the first degree, Count Three of illegal manufacture of drugs in violation of R.C. 2925.04(A), (C)(2), (E), a felony of the second degree, Count Four of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), (B)(1), and 2929.14(B)(3), a felony of the first degree, and Count Five of having weapons while under disability in violation of R.C. 2923.13(A)(3), (B), a felony of the third degree. (Doc. No. 1). Count One includes a specification under R.C. 2941.1410(A) alleging that Thomas is a major drug offender ("MDO") as defined in R.C. 2929.01 in that Count One involved the possession of, sale of, or the offer to sell heroin in an amount of at least two hundred fifty grams. (Id.). Count One also includes an automobile forfeiture specification under R.C. 2941.1417(A) alleging that Thomas was the owner or possessor of a 2008 GMC vehicle that was contraband or property derived from the offense or was used or intended for use to transport or store drugs. (Id.). Count One also includes that specification as related to a black 2011 Cadillac. (Id.). Counts Two and Three include the same MDO and forfeiture specifications that are in Count One. (Id.). Count Four includes forfeiture specifications as to both vehicles mentioned above. (Id.). Count Five includes a firearms specification under R.C. 2941.141(A) and 2929.14(B)(1)(e) alleging that Thomas knowingly acquired, had, carried, or used a firearm or dangerous ordinance after having been convicted of a felony involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse. (Id.).

         {¶4} Thomas appeared for arraignment on November 2, 2015 and pled not guilty to all counts and specifications in the indictment. (Doc. No. 10). That same day, Thomas filed a motion to dismiss Count Four of the indictment, claiming that Count Four was defective because it did not specify the enterprise with which Thomas was connected for purposes of the statute and because it did not specify prior incidents of corrupt activity necessary to establish a pattern of such activity. (Doc. No. 8). The State filed a response to that motion on November 17, 2015. (Doc. No. 29). Thomas filed a reply to the State's response on November 25, 2015. (Doc. No. 34). That same day, the trial court denied Thomas's motion to dismiss Count Four of the indictment. (Doc. No. 35).[1] The State filed a bill of particulars specifying the predicate offenses for Count Four on December 2, 2015. (Doc. No. 38).

         {¶5} A total of five motions to suppress evidence followed. (Doc. Nos. 23, 24, 25, 30, 33). Thomas's assignments of error relate only to his second, third, and fourth motions to suppress. (Appellant's Brief at 13, 19, 24). In Thomas's second motion to suppress, he sought the suppression of evidence gathered after a stop and subsequent search of Thomas's vehicle on October 15, 2015. (Doc. No. 24). Thomas argued that the State was without both reasonable suspicion and probable cause to stop and search him and his vehicle. (Id.). Specifically, he argued that the sniff by the canine was a search within the meaning of the Fourth Amendment and that, because a canine can detect some legal substances, an alert by the canine did not give rise to a reasonable belief of criminal activity. (Id.).

         {¶6} In Thomas's third motion to suppress, he asked that the trial court exclude evidence gathered by the use of a camera installed on a utility pole outside his residence which then recorded the exterior of his home and the area surrounding it for a number of months. (Doc. No. 25). Specifically, Thomas argues that the use of a camera to surveil him constantly for an extended period is not analogous to an observation by a passing neighbor and that it is, therefore, a search within the meaning of the Fourth Amendment. (Id.).

         {¶7} In Thomas's fourth motion to suppress, he asked that the trial court exclude evidence stemming from the installation of a GPS tracking device on his 2011 Cadillac. (Doc. No. 30). Specifically, Thomas argued that alleged drug transactions did not involve the 2011 Cadillac but instead involved a different vehicle. (Id.).

         {¶8} The State filed responses to all of those motions to suppress. (Doc. Nos. 36, 37, 39, 50, 63).

         {¶9} On February 23, 2016, the trial court overruled the third and fifth motions to suppress. (Doc. No. 90). The trial court held a hearing on the fourth motion to suppress on February 29, 2016, and it denied that motion on the same day. (Doc. No. 95). On March 7, 2016, the trial court held a hearing on Thomas's second motion to suppress, and overruled the motion on March 15, 2016. (Doc. No. 113).

         {¶10} On April 28, 2016, Thomas pled no contest to Count One with the MDO specification and the forfeiture specification pertaining to the Cadillac, no contest to Count Four with the forfeiture specification pertaining to the Cadillac, and no contest to Count Five. (April 28, 2016 Tr. at 37-38); (Doc. No. 129). Counts Two and Three were dismissed. (Doc. No. 130).

         {¶11} The trial court accepted Thomas's no contest pleas and found him guilty of those offenses and specifications to which he pled no contest. (Id.). On June 13, 2016, the trial court sentenced Thomas to 11 years in prison as to Count One, 10 years in prison as to Count Four, and 2 years in prison as to Count Five, with all prison terms to be served consecutively for a total of 23 years of incarceration. (Doc. No. 138). The trial court further suspended Thomas's driver's license for 6 months and ordered that Thomas's interest in his 2011 Cadillac be forfeited. (Id.).

         {¶12} Thomas filed his notice of appeal on July 12, 2016. (Doc. No. 141). He brings six assignments of error for our review. For ease of discussion, we will address his third, fourth, fifth, and sixth assignments of error separately, and then his first and second assignments of error together.

         Assignment of Error No. III

         The Trial Court Erred In Overruling Thomas'[s] Motion To Suppress IV (GPS) And Its Fruits Obtained From Said Evidence, The Warrant Having Been Obtained Without Probable Cause, Which Resulted In Unreasonable Searches And Seizures.

         {¶13} In his third assignment of error, Thomas argues that the trial court erred in denying his fourth motion to suppress evidence because the warrant authorizing the placement of a GPS device on Thomas's vehicle was not supported by probable cause. (Appellant's Brief at 13). Specifically, Thomas avers that the search warrant was not supported by probable cause because the information provided in the affidavit supporting the warrant was stale and thus did not support the belief that cocaine or evidence of cocaine trafficking would still be in Thomas's vehicle. (Id. at 15). Thomas further argues that some of the evidence included in the affidavit in support of the search warrant was obtained illegally and that the use of illegally obtained evidence taints the search warrant irreparably. (Id. at 14). Thomas further asserts that the trial court erred in denying the motion to suppress evidence because the affidavit in support of the search warrant did not have sufficient facts to give rise to a finding of probable cause. (Id. at 17).

         {¶14} We begin by noting that, though Thomas argues that the trial court's rulings violate the constitutions of Ohio and of the United States, the Ohio Constitution's search-and-seizure provisions have been interpreted as providing the same protection as is provided by the Fourth Amendment to the United States Constitution. State v. Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795, ¶ 11, citing State v. Robinette, 80 Ohio St.3d 234, 238-239 (1997).

         {¶15} A review of the denial of a motion to suppress involves mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to evaluate the evidence and the credibility of witnesses. Id. See also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a motion to suppress, "an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence." Burnside at ¶ 8, citing State v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court's conclusions of law, however, our standard of review is de novo, and we must independently determine whether the facts satisfy the applicable legal standard. Id., citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

         {¶16} When reviewing the sufficiency of probable cause in an affidavit submitted in support of a search warrant, our duty is simply to "ensure that the magistrate had a substantial basis for concluding that probable cause existed." State v. George, 45 Ohio St.3d 325 (1989), paragraph two of the syllabus, citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983). We must not conduct "a de novo determination as to whether the affidavit contains sufficient probable cause upon which the court would issue the search warrant, " but rather accord great deference to the trial court's determination of probable cause and resolve marginal cases in favor of upholding the warrant. George at paragraph two of the syllabus. We recognize that the duty of the issuing official 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 the '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." Id. at 329, citing Gates at 238-239.

         {¶17} The exclusionary rule should not bar the use of evidence obtained by officers acting in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate even if that warrant is ultimately found to be unsupported by probable cause. Id. at 325, citing U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984). Exclusion remains proper, however, where the magistrate or judge who issued the warrant was misled by information in the affidavit that the affiant knew was false or would have known was false if not for reckless disregard of the truth, where the magistrate wholly abandoned his judicial function in issuing the warrant, where the affidavit is "so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable, " or where the warrant is so facially deficient that officers cannot reasonably presume its validity. George at 331, citing Leon at 923.

         {¶18} Thomas argues that the trial court erred in denying his motion to suppress evidence in part because the information was stale such that it did not provide probable cause of drug activity at the time the warrant was issued. (Appellant's Brief at 14-15). Our review of the record indicates that Thomas never raised the issue of staleness in his fourth motion to suppress. (See Doc. No. 30). Our review further indicates that he never raised the issue of staleness at the hearing on that motion. (See Feb. 29, 2016 Tr.).[2] Because that issue was not raised before the trial court, we conclude that Thomas has waived it on appeal. State v. Shindler, 70 Ohio St.3d 54, 58 (1994) (noting that, by requiring the defendant to state with particularity the legal and factual issues before the trial court, the prosecutor and the trial court are informed of those issues to be heard and decided and, "by omission, those issues which are otherwise being waived") (emphasis added).

         {¶19} Thomas also argues that the judge who issued the search warrant "relied on information that was illegally and unconstitutionally obtained, which cannot be excised." (Appellant's Brief at 14). For this proposition, Thomas cites State v. Waddy. 63 Ohio St.3d 424 (1992). Waddy concerns a misrepresentation and various omissions that tainted an affidavit, not information that was illegally obtained. Id. at 441. For that reason, we conclude that Waddy is inapplicable here.

         {¶20} Thomas also relies substantially on our decision in State v. Foster. State v. Foster, 3d Dist. Allen No. 1-14-54, 2015-Ohio-3401, ¶ 11. In that case, we noted that evidence gathered during the execution of a search warrant is not admissible if the warrant was issued in reliance upon evidence obtained from an illegal search. Foster at ¶ 11. However, Foster involved a situation in which the police who conducted the search knew that they needed a warrant but decided to proceed without one. Id. at ¶ 10. We have subsequently explained that the exclusion of evidence is proper where police demonstrate "deliberate, " "reckless, " or "grossly negligent" disregard for Fourth Amendment rights, not when police conduct themselves with an objectively reasonable, good-faith belief that their conduct is lawful. State v. Bolen, 3d Dist. Seneca No. 13-16-01, 2016-Ohio-7821, ¶ 40, citing Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 2427 (2011). As in Bolen, we find no evidence in this record that the police who conducted the search at issue did so with any deliberate, reckless, or grossly negligent disregard for Thomas's rights. Therefore, we conclude that Thomas's argument that the trial court should have suppressed evidence because the judge who issued the warrant did so relying upon illegally obtained information is without merit. Id.

         {¶21} We will now address whether the affidavit provides probable cause to issue the search warrant Thomas challenges. The affidavit at issue here consists of seven pages of text comprised of seventeen numbered paragraphs. (State's Ex. 1). In the affidavit, the affiant provided the following information: the affiant has been employed by the Lima Police Department since May 19, 2008 and is assigned to the Lima Allen County Interdiction Task Force, having been involved in many narcotics investigations and had extensive training as to drugs and drug interdiction. The affiant also has extensive experience interviewing defendants and witnesses as part of his duties and is thus well-versed in the drug trade. On September 23, 2014, Lima's drug task force was conducting surveillance of room 225 of a Motel 6 at 1800 Harding Highway. During the course of monitoring Jaime Hernandez, the occupant of room 225, officers observed Thomas operating a 2011 black Cadillac registered to his daughter Ashley Williams. Thomas stopped at Hernandez's motel room and picked him up in that vehicle, and the two men traveled to J's American Pub for approximately one hour. During that hour, Thomas exited the business alone and was seen talking on two cellular phones simultaneously. He did the same thing after he and Hernandez traveled to Texas Roadhouse in Lima. Based on his training and experience, the affiant knows it is common for drug dealers to use multiple cellular phones to assist them in their illegal activities. The two men eventually returned to the motel where Thomas dropped Hernandez off and then departed. A later check of Thomas's criminal history revealed that he had multiple drug-related arrests and convictions, including both possession of and trafficking in cocaine. A subsequent search of Hernandez's motel room revealed $20, 000 in cash concealed in a light fixture. The affiant's training and experience lead him to believe that Hernandez and Thomas were jointly participating in the sale of narcotics. Investigators subsequently conducted trash pulls from trash cans located at a residence on Reservoir Road. The fruits of the trash pulls included papers bearing Thomas's name, as well as items that are commonly used by those engaging in narcotics trafficking. Through another trash pull conducted on June 18, 2015, officers located a receipt for a $900 money transfer dated June 13, 2015. That receipt identified Thomas as the sender, and it identified the recipient of the money as a woman in Donna, TX, a town near the Mexican border. Said area is a known source of narcotics that eventually arrive in Lima. Surveillance video from Walmart in Lima depicted Thomas's arrival in what he believed to be a 2008 Yukon Denali. The camera footage showed Thomas exiting the vehicle and going immediately to the customer service desk to transfer money. The video showed Thomas leave immediately when the transaction was completed. On September 9, 2015, investigators on the drug task force received a tip from a known and reliable source that Thomas was observed at the residence of one of his associates. According to the source, Thomas arrived in a 2011 Cadillac and, shortly thereafter, multiple other vehicles also arrived. The source observed multiple bags being removed from other vehicles, and those bags were then placed in the 2011 Cadillac. Based on their training and experience, investigators believed that drug transactions were taking place. (Id.).

         {¶22} This Court addressed circumstances similar to these in State v. Urdiales. State v. Urdiales, 3d Dist. Henry No. 7-15-03, 2015-Ohio-3632. In Urdiales, the defendant challenged a search warrant which authorized the placement of a GPS tracking device on his vehicle. Id. at ¶ 13. Specifically, Urdiales argued that the affidavit in support of the search warrant was not sufficient to provide probable cause. Id. We upheld the search warrant, noting specifically that the affidavit in that case attested to the reliability of the informant. Id. at ¶ 18. In upholding the warrant, we also noted that the affidavit recited the underlying circumstances on which the informant based his belief that criminal activity was occurring. Id. at ¶ 19. We further noted that the affidavit included a specific description of the vehicle and its driver. Id. at ¶ 21. We followed the conclusion of the Supreme Court of Ohio that observations from an informant may be given added weight by information gleaned from corroborative police surveillance. Id. citing State v. Graddy, 55 Ohio St.2d 132, 139-140 (1978).

         {¶23} Similar facts prevail here. Though the affidavit at issue does not go into great detail about the informant, it minimally describes him as a "known" and "reliable" source. (State's Ex. 1). However, apart from any mention of the informant, and apart from the excised second paragraph of the affidavit, the voluminous affidavit recounts extensive observations by multiple law enforcement officers as well as the conclusions, based on the training and experience of those officers and the affiant, that Thomas was likely engaging in ...


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