State v. Carter

2011 Ohio 6700

Ohio Court of Appeals·Decided December 23, 2011·No. 2011 CA 11·Published·Cited by 5 cases

Opinion

[Cite as State v. Carter, 2011-Ohio-6700.]

IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2011 CA 11

v. : T.C. NO. 2010CR358

DORIAN CARTER : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

..........

OPINION

Rendered on the 23rd day of December , 2011.

ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecutor, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee

ANTHONY COMUNALE, Atty. Reg. No. 0062449, 130 West Second Street, Suite 2050, Dayton, Ohio 45402 Attorney for Defendant-Appellant

FROELICH, J.

{¶ 1} Dorian Carter appeals from a judgment of the Greene County Court of

Common Pleas, which, after overruling his motions to suppress evidence, found him

guilty on his no contest pleas to three counts of complicity to aggravated trafficking in

drugs. The court sentenced him to a mandatory term of four years on each count, to 2

be served concurrently.

{¶ 2} Carter’s indictment followed a series of controlled purchases of ecstasy by

a confidential informant in conjunction with the Greene County A.C.E. Task Force.

These purchases, which occurred between August and December 2009, led the police

to seek a search warrant for Carter’s apartment, 1777 Arlin Place, Apartment H, in

Fairborn. The affidavit in support of the search warrant was prepared by Detective

Richard Miller of the Yellow Springs Police Department; it detailed three controlled

purchases of ecstasy made by the confidential informant and the evidence linking the

ecstasy to apartment H. According to Detective Miller, no information was presented to

the judge beyond that contained in the affidavit.

{¶ 3} On December 10, 2009, a judge issued a search warrant for 1777 Arlin

Place, Apartment H. The search warrant was executed on December 11, 2009. Carter

made statements to the police at the time of the search, and drugs and weapons were

found in his apartment.

{¶ 4} In July 2010, Carter was indicted on two counts of conspiracy to commit

aggravated trafficking in drugs (ecstasy), three counts of complicity to aggravated

trafficking in drugs (ecstasy), one count of possession of marijuana, and one count of

trafficking in marijuana, with a firearm specification. The indictment also contained

forfeiture specifications with respect to numerous guns, cash, and a flat-screen

television. Carter pled not guilty and filed motions to suppress his statements to the

police and the evidence found as a result of the search of his apartment. In October

2010, the trial court held a hearing on the motions to suppress. The trial court

overruled the motions to suppress in their entirety. 3

{¶ 5} After the trial court overruled his motions to suppress, Carter changed his

plea to no contest on three counts of complicity to aggravated trafficking in drugs, all

felonies of the third degree with mandatory imprisonment; the other counts, including

the firearm specification, were dismissed. The trial court found Carter guilty and

sentenced him to a definite term of four years on each count, to be served concurrently,

as discussed above. Carter also stipulated to the forfeiture of all the items listed in the

indictment, and the trial court ordered such forfeiture.

{¶ 6} Carter raises two assignments of error on appeal, which relate to the

denial of his motions to suppress evidence.

{¶ 7} The first assignment of error states:

{¶ 8} “TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION TO

SUPPRESS EVIDENCE OBTAINED AS A RESULT OF THE SEARCH WARRANT.”

{¶ 9} Carter contends that the affidavit in support of the search warrant

contained insufficient evidence to justify the issuance of the warrant and that,

accordingly, the evidence obtained in the search should have been suppressed.

{¶ 10} “In determining the sufficiency of probable cause in an affidavit submitted

in support of a search warrant, ‘[t]he task of the issuing magistrate 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 “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.’” State v. George (1989), 45 Ohio St.3d 325,

paragraph one of the syllabus, following Illinois v. Gates (1983), 462 U.S. 213,

238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527. “[N]either a trial court nor an appellate court 4

should substitute its judgment for that of the magistrate by conducting a de novo

determination as to whether the affidavit contains sufficient probable cause upon which

that court would issue the search warrant. Rather, the duty of a reviewing court is

simply to ensure that the magistrate had a substantial basis for concluding that probable

cause existed. In conducting any after-the-fact scrutiny of an affidavit submitted in

support of a search warrant, trial and appellate courts should accord great deference to

the magistrate’s determination of probable cause, and doubtful or marginal cases in this

area should be resolved in favor of upholding the warrant.” Id., at paragraph two of the

syllabus. The nexus between the items sought and the place to be searched depends

upon all of the circumstances of each individual case, including the type of crime and

the nature of the evidence. State v. Freeman, Highland App. No. 06CA3,

2006-Ohio-5020.

{¶ 11} A search warrant enjoys a presumption of validity; when a defendant’s

motion to suppress attacks the validity of a search conducted under a warrant, the

defendant bears the burden of proof. State v. Barnes (Mar. 16, 2000), Franklin App.

No. 99AP-572.

{¶ 12} Detective Miller’s affidavit in support of the search warrant stated:

{¶ 13} “2. On or about August 25, 2009, the Affiant was contacted by a

confidential source, hereafter referred to as CS#1, who told the Affiant that he/she knew

a subject by the name of David Rose who lived at Arlin Apartments and sold ecstasy.

CS#1 told the Affiant that Rose used telephone number 937-626-2535 to facilitate his

drug transactions.

{¶ 14} “3. On or about August 25, 2009, the Affiant directed CS#1 to place a 5

controlled telephone call to Rose to order a quantity of ecstasy. The Affiant made a

recording of the telephone call. CS#1 ordered a quantity of ecstasy from Rose and was

quoted a price for the ecstasy. On the phone, Rose identified his supplier as a subject

named ‘D’, telling CS#1 that D was his neighbor at the Arlin Apartments. Rose told CS#1

that he was going to call D and get the ecstasy to sell to CS#1. Rose called CS#1

moments late[r] and stated that he (Rose) had gotten the ecstasy from D and was ready to

meet. *** Detectives Kordish and Prall, and other law enforcement officials, conducted

audio and video surveillance of CS#1 at the deal location. Shortly after CS#1 arrival at the

deal location, Rose arrived as a passenger of a VW Jetta bearing Ohio license number

EUL8813. Rose got into the passenger seat of CS#1 vehicle and exchanged the buy

money for a quantity of purported ecstacy. After the exchange, Rose exited CS#1 and

returned to the vehicle he arrived in. Surveillance detectives followed Rose and the vehicle

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