[Cite as State v. Elliott, 2013-Ohio-5753.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. vs. : : Case Nos. 2013 AP 07 0028 LEROY ELLIOTT, III : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2012 CR 10 0258
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 23, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RYAN STYER DEREK LOWRY PROSECUTING ATTORNEY 116 Cleveland Avenue NW MICHAEL J. ERNEST Suite 800 ASSISTANT PROSECUTOR 125 East High Avenue New Philadelphia, Ohio 44663 [Cite as State v. Elliott, 2013-Ohio-5753.]
Wise, J.
{¶1} Appellant Leroy Elliott, III, appeals the trial court’s denial of his motion to
suppress.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On July 23, 2012, officers received a phone call from a Melvin McVey
stating that he was an employee of Frontier Propane, a propane company which
services Appellant's property. (T. at 2-3; Affidavit for Search Warrant). Mr. McVey
alleged that he was at Appellant’s home investigating a gas leak a week prior to his call.
(T. at 3). Mr. McVey reported to the police that while he was in the basement, he saw a
room with powerful lights and he smelled marijuana. (T. at 4). Mr. McVey expressed
concern that the marijuana would enter his system and cause him to fail his next
random drug screen required by his employer. (T. at 4).
{¶4} On July 24, 2012, Det. Jeff Moore with the Tuscarawas County Sheriff's
Detective filed an Affidavit for a search warrant for Appellant's residence. The Affidavit
of Det. Moore provided that he was notified by Melvin McVey of a possible grow
operation at Appellant's residence at 7562 Elliott Road SW, Newcomerstown, Ohio. In
this Affidavit, Det. Moore indicated that McVey informed him that he is an employee of
Frontier Propane, where he worked for the past nine years. According to the Moore
Affidavit, McVey was at Appellant's home to carryout work on behalf of Frontier
Propane. Mr. McVey indicated that he entered Appellant's home after detecting a gas
leak at the residence. According to the Moore Affidavit, McVey observed very bright
lights coming from a room located within the basement of the Elliott home. McVey also went on to tell Det. Moore that he smelled what he believed to be a strong odor of
marijuana. McVey further indicated that he was familiar with the smell of marijuana, and
he believed that he had witnessed a grow operation for the purposes of growing
marijuana.
{¶5} The same day, the court took testimony from the affiant Detective and
issued the requested warrant.
{¶6} The Affidavit also stated that it was believed that Appellant's home
contained evidence such as marijuana cultivation paraphernalia, marijuana plants,
potting soil, fertilizer, grow lights, and other materials used for cultivation along with
cash, firearms and other controlled substances used in violation of R.C. §2925.04,
Cultivation of Marijuana; and R.C. §2925.14, Drug Paraphernalia.
{¶7} On July 24, 2012, officers obtained a search warrant and forced entry into
Appellant's home where they discovered a marijuana growing operation. Following the
execution of the search warrant, an inventory was returned for the search of Appellant's
home at 7562 Elliott Road SW, Newcomerstown, Ohio.
{¶8} On October 1, 2012, as a result of the above search, Appellant was
indicted by the Tuscarawas County Grand Jury for one count of Illegal Cultivation of
Marijuana and one count of Possession of Drugs, in violation of R.C.
§2925.11(A)(C)(3)(d) and R.C. §2925.04(A)(C)(5)(d).
{¶9} On November 19, 2012, Appellant filed a Motion to Suppress the evidence
obtained in the execution of the search warrant. The case was assigned to the same
Judge who issued the search warrant. {¶10} On December 10, 2012, the Judge recused herself and the case was
assigned to the other Common Pleas Judge.
{¶11} On January 25, 2013, a hearing was held regarding the Motion to
{¶12} On February 22, 2013, the trial court filed an Entry overruling the Motion to
Suppress. In its Entry, the trial court found “that sufficient, legal probable cause to issue
the Warrant was lacking” but that “the law enforcement officials who executed the
Warrant reasonably relied upon the sufficiency of the probable cause evidence
supporting the issuance of the Search Warrant.”
{¶13} On May 7, 2013, Appellant entered a plea of no contest. Appellant was
sentenced on June 18, 2013.
{¶14} Appellant now appeals, assigning the following error for review:
ASSIGNMENT OF ERROR
{¶15} “I. THE TRIAL COURT ERRED IN NOT GRANTING THE APPELLANT'S
MOTION TO SUPPRESS THE EVIDENCE RECOVERED DURING THE EXECUTION
OF A SEARCH WARRANT WHICH WAS ISSUED ON INSUFFICIENT PROBABLE
CAUSE.”
I.
{¶16} In his sole Assignment of Error, Appellant claims the trial court erred in
denying his motion to suppress the search warrant as the affidavit for the warrant was
insufficient to establish probable cause. We disagree.
{¶17} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact. In reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio
St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v. Guysinger,
86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the trial court
failed to apply the appropriate test or correct law to the findings of fact. In that case, an
appellate court can reverse the trial court for committing an error of law. State v.
Williams, 86 Ohio App.3d 37 (4th Dist.1993). Finally, assuming the trial court's findings
of fact are not against the manifest weight of the evidence and it has properly identified
the law to be applied, an appellant may argue the trial court has incorrectly decided the
ultimate or final issue raised in the motion to suppress. When reviewing this type of
claim, an appellate court must independently determine, without deference to the trial
court's conclusion, whether the facts meet the appropriate legal standard in any given
case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85 Ohio
App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held in
Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), “... as a general matter
determinations of reasonable suspicion and probable cause should be reviewed de
novo on appeal.”
{¶18} Here, an affidavit was filed with the application for the search warrant to
search appellant's residence. At the conclusion of the suppression hearing in this
matter, the trial court found that probable cause to issue the warrant was lacking but
that the officers who executed the warrant “reasonably relied upon the sufficiency of the
probable cause evidence: {¶19} “FINDS that upon review of the evidence relating to the issuance of the
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[Cite as State v. Elliott, 2013-Ohio-5753.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. vs. : : Case Nos. 2013 AP 07 0028 LEROY ELLIOTT, III : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2012 CR 10 0258
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 23, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RYAN STYER DEREK LOWRY PROSECUTING ATTORNEY 116 Cleveland Avenue NW MICHAEL J. ERNEST Suite 800 ASSISTANT PROSECUTOR 125 East High Avenue New Philadelphia, Ohio 44663 [Cite as State v. Elliott, 2013-Ohio-5753.]
Wise, J.
{¶1} Appellant Leroy Elliott, III, appeals the trial court’s denial of his motion to
suppress.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On July 23, 2012, officers received a phone call from a Melvin McVey
stating that he was an employee of Frontier Propane, a propane company which
services Appellant's property. (T. at 2-3; Affidavit for Search Warrant). Mr. McVey
alleged that he was at Appellant’s home investigating a gas leak a week prior to his call.
(T. at 3). Mr. McVey reported to the police that while he was in the basement, he saw a
room with powerful lights and he smelled marijuana. (T. at 4). Mr. McVey expressed
concern that the marijuana would enter his system and cause him to fail his next
random drug screen required by his employer. (T. at 4).
{¶4} On July 24, 2012, Det. Jeff Moore with the Tuscarawas County Sheriff's
Detective filed an Affidavit for a search warrant for Appellant's residence. The Affidavit
of Det. Moore provided that he was notified by Melvin McVey of a possible grow
operation at Appellant's residence at 7562 Elliott Road SW, Newcomerstown, Ohio. In
this Affidavit, Det. Moore indicated that McVey informed him that he is an employee of
Frontier Propane, where he worked for the past nine years. According to the Moore
Affidavit, McVey was at Appellant's home to carryout work on behalf of Frontier
Propane. Mr. McVey indicated that he entered Appellant's home after detecting a gas
leak at the residence. According to the Moore Affidavit, McVey observed very bright
lights coming from a room located within the basement of the Elliott home. McVey also went on to tell Det. Moore that he smelled what he believed to be a strong odor of
marijuana. McVey further indicated that he was familiar with the smell of marijuana, and
he believed that he had witnessed a grow operation for the purposes of growing
marijuana.
{¶5} The same day, the court took testimony from the affiant Detective and
issued the requested warrant.
{¶6} The Affidavit also stated that it was believed that Appellant's home
contained evidence such as marijuana cultivation paraphernalia, marijuana plants,
potting soil, fertilizer, grow lights, and other materials used for cultivation along with
cash, firearms and other controlled substances used in violation of R.C. §2925.04,
Cultivation of Marijuana; and R.C. §2925.14, Drug Paraphernalia.
{¶7} On July 24, 2012, officers obtained a search warrant and forced entry into
Appellant's home where they discovered a marijuana growing operation. Following the
execution of the search warrant, an inventory was returned for the search of Appellant's
home at 7562 Elliott Road SW, Newcomerstown, Ohio.
{¶8} On October 1, 2012, as a result of the above search, Appellant was
indicted by the Tuscarawas County Grand Jury for one count of Illegal Cultivation of
Marijuana and one count of Possession of Drugs, in violation of R.C.
§2925.11(A)(C)(3)(d) and R.C. §2925.04(A)(C)(5)(d).
{¶9} On November 19, 2012, Appellant filed a Motion to Suppress the evidence
obtained in the execution of the search warrant. The case was assigned to the same
Judge who issued the search warrant. {¶10} On December 10, 2012, the Judge recused herself and the case was
assigned to the other Common Pleas Judge.
{¶11} On January 25, 2013, a hearing was held regarding the Motion to
{¶12} On February 22, 2013, the trial court filed an Entry overruling the Motion to
Suppress. In its Entry, the trial court found “that sufficient, legal probable cause to issue
the Warrant was lacking” but that “the law enforcement officials who executed the
Warrant reasonably relied upon the sufficiency of the probable cause evidence
supporting the issuance of the Search Warrant.”
{¶13} On May 7, 2013, Appellant entered a plea of no contest. Appellant was
sentenced on June 18, 2013.
{¶14} Appellant now appeals, assigning the following error for review:
ASSIGNMENT OF ERROR
{¶15} “I. THE TRIAL COURT ERRED IN NOT GRANTING THE APPELLANT'S
MOTION TO SUPPRESS THE EVIDENCE RECOVERED DURING THE EXECUTION
OF A SEARCH WARRANT WHICH WAS ISSUED ON INSUFFICIENT PROBABLE
CAUSE.”
I.
{¶16} In his sole Assignment of Error, Appellant claims the trial court erred in
denying his motion to suppress the search warrant as the affidavit for the warrant was
insufficient to establish probable cause. We disagree.
{¶17} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact. In reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio
St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v. Guysinger,
86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the trial court
failed to apply the appropriate test or correct law to the findings of fact. In that case, an
appellate court can reverse the trial court for committing an error of law. State v.
Williams, 86 Ohio App.3d 37 (4th Dist.1993). Finally, assuming the trial court's findings
of fact are not against the manifest weight of the evidence and it has properly identified
the law to be applied, an appellant may argue the trial court has incorrectly decided the
ultimate or final issue raised in the motion to suppress. When reviewing this type of
claim, an appellate court must independently determine, without deference to the trial
court's conclusion, whether the facts meet the appropriate legal standard in any given
case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85 Ohio
App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held in
Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), “... as a general matter
determinations of reasonable suspicion and probable cause should be reviewed de
novo on appeal.”
{¶18} Here, an affidavit was filed with the application for the search warrant to
search appellant's residence. At the conclusion of the suppression hearing in this
matter, the trial court found that probable cause to issue the warrant was lacking but
that the officers who executed the warrant “reasonably relied upon the sufficiency of the
probable cause evidence: {¶19} “FINDS that upon review of the evidence relating to the issuance of the
Search Warrant in these cases, the undersigned concludes, in his judicial opinion, that
sufficient, legal probable cause to issue the Warrant was lacking. Notwithstanding this
opinion, the law enforcement officials who executed the Warrant reasonably relied upon
the sufficiency of the probable cause evidence supporting the issuance of the Search
Warrant and, consequently, its ultimate legality. The undersigned concludes that
deficiency of sufficient probable cause to issue the Warrant in these cases was not, as a
matter of law, so obvious to the executing officers that they lacked any objective basis
to believe the issuing Judge acted on sufficient probable cause.” (February 22, 2013
Judgment Entry).
{¶20} It is well-established that evidence obtained by a law enforcement officer
acting in objectively reasonable reliance on a search warrant issued by a detached and
neutral judge that is ultimately found to be invalid will not be barred by the application of
the exclusionary rule.
{¶21} In United States v. Leon, 468 U.S. 897 (1984), the United States Supreme
Court crafted a narrow exception to the exclusionary rule, stating that absent an
“allegation that the magistrate abandoned his detached and neutral role, suppression is
appropriate only if the officers were dishonest or reckless in preparing their affidavit or
could not have harbored an objectively reasonable belief in the existence of probable
cause.” Id. at 926.
{¶22} The Ohio Supreme Court adopted the good faith exception set forth in
Leon, supra, in State v. Wilmoth, 22 Ohio St.3d 251, 490 N.E.2d 1236 (1986), syllabus: {¶23} “1. The exclusionary rule should not be applied to suppress evidence
obtained by police officers acting in objectively reasonable, good faith reliance on a
search warrant issued by a detached and neutral magistrate but ultimately found to be
invalid. (United States v. Leon [1984], 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677,
followed.)
{¶24} “2. Where the officer's conduct in the course of a search and seizure is
objectively reasonable and executed in good faith, excluding the evidence because the
search warrant is found to be constitutionally invalid will not further the ends of the
exclusionary rule in any appreciable way.”
{¶25} However, the good-faith exception to the exclusionary rule does not apply
where the officer's reliance on the warrant was not objectively reasonable.
“[S]uppression remains an appropriate remedy where: (1) ‘ * * * the magistrate or judge
* * * was misled by information in an affidavit that the affiant knew was false or would
have known was false except for his reckless disregard of the truth * * * ’; (2) ‘ * * * the
issuing magistrate wholly abandoned his judicial role * * * ’; (3) an officer purports to rely
upon ‘ * * * a warrant based on an affidavit “so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable” ‘; or (4) ‘ * * * depending on
the circumstances of the particular case, a warrant may be so facially deficient-i.e., in
failing to particularize the place to be searched or the things to be seized-that the
executing officers cannot reasonably presume it to be valid.’ ” State v. George, 45 Ohio
St.3d 325, 331 (1989), quoting Leon at 923.
{¶26} In the instant case, the detective properly requested a determination by a
judge on the issue of whether probable cause existed to execute the search. The good faith of the officer(s) is also objectively reasonable because the content of the affidavit
was not so lacking in indicia of probable cause as to render belief in its existence
entirely unreasonable. A reasonably well-trained officer would not have known that the
search was illegal despite the judge’s authorization. The warrant was based on an
affidavit which relied upon information provided by an indentified individual purporting to
have first-hand knowledge of possible criminal activity occurring at the residence
belonging to Appellant. Further, even if the warrant was invalid, as found by the trial
court below, the error in issuing the warrant would be attributable to the judge, not the
officers.
{¶27} Based on the foregoing, we do not find that the search warrant to have
been lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable or so facially deficient that the executing officers could not
reasonably presume it to be valid.
{¶28} Appellant’s sole Assignment of Error is overruled.
{¶29} For the foregoing reasons, the decision of the Court of Common Pleas,
Tuscarawas County, Ohio, is affirmed.
By: Wise, J.
Gwin, P.J and
Farmer, J. concur.
__________________________________ HON. JOHN W. WISE _________________________________ HON. W. SCOTT GWIN
_________________________________ HON. SHEILA G. FARMER
JWW/d 1211 IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : LEROY ELLIOTT, III : : Defendant-Appellant : CASE NO. 2013 AP 07 0028
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Court of Common Pleas of Tuscarawas County, Ohio, is affirmed.
Costs assessed to appellant.
_________________________________ HON. JOHN W. WISE
_________________________________ HON. W. SCOTT GWIN