from Allen County Common Pleas Court Trial Court No. CR 2015
M. Blake for Appellant
E. Emerick for Appellee
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.
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.
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.).
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.
The State filed a bill of particulars specifying the
predicate offenses for Count Four on December 2, 2015. (Doc.
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.).
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.).
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.).
The State filed responses to all of those motions to
suppress. (Doc. Nos. 36, 37, 39, 50, 63).
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).
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.
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
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.
of Error No. III
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
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).
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,
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).
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.
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.
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.). 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).
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.
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
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.).
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).
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 ...