State v. Dennison

125 N.E.3d 257, 2018 Ohio 5126
CourtCourt of Appeals of Ohio, Seventh District, Columbiana County
DecidedNovember 30, 2018
DocketNo. 17 CO 0039
StatusPublished
Cited by2 cases

This text of 125 N.E.3d 257 (State v. Dennison) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Seventh District, Columbiana County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dennison, 125 N.E.3d 257, 2018 Ohio 5126 (Ohio Super. Ct. 2018).

Opinion

Robb, P.J.

*259{¶1} Defendant-Appellant Justin Dennison appeals the decision of the Columbiana County Court of Common Pleas denying his motion to suppress the evidence obtained during the search of his residence. The officers obtained a search warrant to search Appellant's residence. Appellant argues the search warrant should not have been issued because there was not a proper showing of probable cause that contraband or evidence of possession of drugs, specifically heroin, would be found in the residence. The issue before this court is whether the court abused its discretion in issuing the search warrant; was there sufficient probable cause in the affidavit accompanying the request for the search warrant. For the reasons expressed below, the warrant was supported by probable cause. The drugs seized during the search were not required to be suppressed. The trial court suppression ruling is affirmed.

Statement of the Case

{¶2} Appellant was indicted for drug possession, specifically heroin, in violation of R.C 2925.11(A), a second-degree felony. 8/18/16 Indictment. Appellant pled not guilty to the charge and thereafter moved to unseal the search warrant. 9/9/16 J.E.; 1/17/17 Motion. The parties reached an agreement to unseal the search warrant and affidavit, both of which were to be treated as "counsel only" material. 1/20/17 J.E.

{¶3} Appellant filed a motion to suppress all evidence collected during the execution of the search warrant. 3/8/17 Motion to Suppress. The search warrant was issued to search Appellant's residence located at 36333 Longs Crossing Rd, Leetonia, Columbiana County, Ohio. The evidence found during the search was heroin. In the motion to suppress this evidence, Appellant argued there was not sufficient probable cause stated in the affidavit to support the issuance of a search warrant. 3/8/17 Motion to Suppress. The state responded to the motion asserting there was sufficient probable cause stated in the search warrant. 4/17/17 Response to Motion to Suppress. Thereafter, Appellant filed a reply. 4/24/17 Reply to Response Motion.

{¶4} The parties agreed to submit the matter on the briefs. 5/1/17 J.E. The trial judge was Judge Pike; however, he issued the search warrant. 5/1/17 J.E. Thus, for purposes of ruling on the suppression motion, the issue was transferred to Judge Washam. 5/1/17 J.E.

{¶5} The trial court denied the suppression motion. 6/13/17 J.E. Both the search warrant and the affidavit were marked as exhibits to the judgment entry, but remained under seal with the court reporter. 6/13/17 J.E. The trial court found the affidavit set forth sufficient probable cause of criminal activity occurring at Appellant's residence located at 36333 Longs Crossing Road. 6/13/17 J.E. There were two controlled purchases involving a confidential informant and an unwitting third person that occurred at the residence; each time the unwitting third person entered the residence and came out a few minutes later with heroin and handed it directly to the undercover agent. 6/13/17 J.E. The court *260indicated the search warrant affidavit corroborated the reliability of the confidential informant. 6/13/17 J.E. There was also a reliable source known to the detective who reported Appellant and Diana Jenkins were selling heroin in 2014. 6/13/17 J.E. In 2015 and 2016 this same detective also received information from known sources Appellant and Diana Jenkins were involved with a "big time" drug dealer in Youngstown. 6/13/17 J.E. The detective also averred he received reliable information Appellant kept drugs in the trunk area of his personal vehicles, Appellant regularly drove three different vehicles, one of the vehicles was present at the residence when the first controlled purchase occurred, and all vehicles were present during the second controlled purchase at the residence. 6/13/17 J.E.

{¶6} In addition to finding there was probable cause, the trial court also found, even if the search warrant was not supported by probable cause, the good faith exception was applicable. 6/13/17 J.E.

{¶7} The state and Appellant entered into a plea agreement. 8/29/17 J.E. Appellant withdrew his not guilty plea and entered a no contest plea to the indictment. 8/29/17 J.E. The trial court accepted the plea and found Appellant guilty of possession of drugs, a violation of R.C. 2925.11(A), a second-degree felony. 8/29/17 J.E.

{¶8} Appellant received a three year prison sentence and three years of post release control. 11/14/17 J.E.

{¶9} Appellant timely appealed the suppression ruling challenging the findings that the affidavit presented sufficient probable cause and, even if it did not, the good faith exception applied.

First Assignment of Error

"The trial court lacked a substantial basis to determine that probable cause existed that evidence of criminal activity, in particular, controlled substances, would be found at Appellant's residence. The warrant in this case was issued based upon an affidavit submitted by Detective George Long. The affidavit was so lacking in indicia of probable cause to render any reliance upon it unreasonable."

{¶10} As stated above, Appellant is challenging the issuance of the search warrant. He contends the affidavit did not establish sufficient probable cause for the issuance of the search warrant. Appellant argues the affidavit did not establish a connection between criminal activity of drug possession and his residence. He asserts the information in the affidavit from sources only established that drugs were kept in the trunk of a vehicle or vehicles owned by Appellant, not at his residence. He acknowledges the affidavit indicated there were two controlled buys involving a confidential informant and an unwitting third person that occurred at the residence. However, he focused on the unwitting third person who was not established as reliable in the affidavit. He asserts, at most, the affidavit established an assumption that evidence of criminal activity would be found at the residence, instead of establishing reasonable cause to believe that specific things to be searched for and seized were located on the property.

{¶11} The state counters focusing on the two controlled buys at the residence and the fact that it is widely accepted that the residence is a convenient and commonly used place for planning continued criminal activities like trafficking drugs and laundering money. It asserts in the case of drug dealers, evidence is likely to be found where the dealer lives. Thus, it concludes there was probable cause to issue the search warrant.

{¶12} Under Crim.R. 41, a request for a search warrant must be accompanied by a *261sworn affidavit "establishing the grounds for issuing the warrant." Crim.R. 41(C)(1). A search warrant will be issued if the judge finds, based on the information in the affidavit, "probable cause for the search exists." Crim.R. 41(C)(2). "The finding of probable cause may be based upon hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished." Crim.R. 41(C)(2).

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Cite This Page — Counsel Stack

Bluebook (online)
125 N.E.3d 257, 2018 Ohio 5126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dennison-ohctapp7columbi-2018.