[Cite as State v. Fleming, 2013-Ohio-503.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellant : C.A. CASE NO. 2012 CA 59
v. : T.C. NO. 12CR118
JERMAINE FLEMING : (Criminal appeal from Common Pleas Court) Defendant-Appellee :
:
..........
OPINION
Rendered on the 15th day of February , 2013.
ANDREW R. PICEK, Atty. Reg. No. 0082121, Assistant Prosecuting Attorney, 50 E. Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellant
JON PAUL RION, Atty. Reg. No. 0067020 and NICOLE RUTTER-HIRTH, Atty. Reg. No. 0081004, 130 W. Second Street, Suite 2150, P. O. Box 1262, Dayton, Ohio 45402 Attorneys for Defendant-Appellee
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of the State of
Ohio, [Cite as State v. Fleming, 2013-Ohio-503.] filed September 5, 2012. The State appeals from the August 30, 2012 judgment of the
trial court that sustained Jermaine Fleming’s motion to suppress. We hereby affirm the
judgment of the trial court.
{¶ 2} On February 21, 2012, Fleming was indicted on three counts of trafficking in
drugs, in violation of R.C. 2925.03(A)(2), three counts of possession of drugs, in violation of
R.C. 2925.11(A), and two counts of having a weapon while under disability, in violation of
R.C. 2923.13. On June 29, 2012, Fleming filed his Motion to Suppress, and on July 11,
2012, he filed a Supplemental Motion to Suppress. Attached to the supplemental motion is
a 2003 Judgment Entry of Conviction, pursuant to which Fleming was convicted of
aggravated burglary, in violation of R.C. 2911.11, and possession of drugs, in violation of
R.C. 2925.11. Fleming received a seven year sentence. The Judgment Entry of Conviction
provides in part:
The Court has further notified the defendant that post release control
is mandatory in this case up to a maximum of five years, as well as the
consequences for violating conditions of post release control imposed by the
parole board under Revised Code Section 2967.28. The defendant is ordered
to serve as part of this sentence any term of post release control imposed by
the Parole Board, and any prison term for violation of that post release
control. (Emphasis added).
{¶ 3} In his supplemental motion, based upon the above language regarding
post-release control, Fleming asserted as follows:
The basis for this supplemental motion is that the evidence obtained
by the state was obtained as a result of Defendant being subject to [Adult 3
Parole Authority] supervision, pursuant to a term of post-release control.
However, Defendant was not properly on post-release control, and that
portion of his sentence is void. Because Defendant should not have been on
post-release control, all searches which occurred as a result of his supervision
were improper, and all evidence obtained as a result of those searches must be
suppressed.
{¶ 4} The court held a hearing on the motion to suppress on August 24, 2012, at
which Parole Officer Tony Barrett testified that he is employed by the Adult Parole
Authority, and that on August 25, 2010, he placed Fleming under supervision after he was
released from prison for the 2003 offenses. Barrett identified State’s Exhibit 1 as Fleming’s
Conditions of Supervision. The ninth condition of supervision listed on the form provides
as follows:
I agree to a search, without a warrant, of my person, my motor
vehicle, or my place of residence by a supervising officer or other authorized
representative of the Department of Rehabilitation and Correction at any
time. Notice: Pursuant to section 2967.131 of the Revised Code, Officers of
the Adult Parole Authority may conduct warrantless searches of your person,
your place of residence, your personal property, or any property which you
have been given permission to use if they have reasonable grounds to believe
that you are not abiding by the law or terms and conditions of your
supervision.
{¶ 5} Barrett stated that he approved a residential placement for Fleming as part of 4
his supervision, located at 18 West Perrin Avenue, and that in March, 2011, he received
information that Fleming resided at 1924 Ontario Avenue, in violation of the terms of his
supervision. Barrett stated that he later received information that Fleming had been involved
in a shooting, and that he conducted a search of 1924 Ontario Avenue on February 13, 2012
and arrested Fleming. Barrett stated that he observed Fleming’s vehicle outside of the
Ontario address on that date, and that he contacted the Springfield police for assistance.
Barrett stated that a “young lady” answered the door of the residence. He stated that when he
asked if Fleming was present, she asked Barrett who he was. When Barrett told her that he
was Fleming’s parole officer, he testified that she “backed away and kind of looked over
towards another area. I walked in. There he was.”
{¶ 6} The following exchange occurred:
Q. When you placed the defendant under arrest, did you see
anything of interest in the immediate area at that time?
A. No. I placed him under arrest. I asked him for the keys to the
vehicle. He said they were in the back room. I went to the back room to get
the keys. That’s where most of his property was located within that back
room.
Came back out at that point and a speaker was turned around and the
back of it was exposed with a hole in it. At that point there was a .9
millimeter pistol that was exposed.
Q. When you saw the .9 millimeter pistol, what did you do?
A. * * * I don’t know what we would call it. Did an administrative 5
search, searched in the common areas and located what seemed to be powder
in some of the kitchen drawers.
***
Q. When you went to go get the defendant’s keys out of the
bedroom, who instructed you that they were back there?
A. Mr. Fleming.
Q. Why did you go get the keys?
A. Because I wanted to search the car as well.
Q. And he told you to go get the keys out of the bedroom, that they
were located there?
A. Yes.
{¶ 7} Barrett testified that he believed the powder that he found to be cocaine.
Barrett stated that he and the responding police officers “backed out of the house, secured
the premises, and then that’s when the search warrant was secured.” Barrett stated that at
that time, the Springfield police officers took charge of the investigation.
{¶ 8} On cross-examination, Barrett stated that the .9 millimeter weapon was in
plain view, “exposed right there.” He stated that he had credible information that Fleming
resided at the residence from other individuals as well as his own surveillance. Barrett
stated that his arrest and search of the residence occurred pursuant to the 2003 judgment
entry of conviction. Specifically, he testified that his authority to arrest Fleming and conduct
a search is based upon the ninth condition of supervision in the Conditions of Supervision.
{¶ 9} On redirect, Barrett stated that numerous police officers initially responded 6
to the scene to assist him, “[d]ue to the fact that there was a weapon involved in the
shooting.” The following exchange occurred:
Q. Mr. Barrett, if you can elaborate on the process of how you
received that information when somebody is placed on post-release control
for us.
A. * * * A certain number of items that come with the packet (sic).
The journal entry is quite often in the packet.
We may have to go to court at times, I believe people have to get the
journal entry, but I don’t know the exact date, 2007, 2008, 2009, there was a
Barns1 case, which there was a lawsuit against the State of Ohio regarding
the entry whether the language was correct as far as PRC goes.
To my knowledge, there was 17,000 plus cases reviewed by the State.
We had to get the journal entries, send them up to the State and they
reviewed that to see if the language was appropriate.
Mr. Fleming’s language was deemed appropriate once it was Barns
reviewed and so that was - -
MR. RION: Objection as to what was deemed appropriate by a source.
I mean, he can speculate.
MR. PICEK: I think that’s something he was told and this is a
1 See State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 71 (“in the absence of a proper sentencing entry imposing postrelease control, the parole board’s imposition of postrelease control cannot be enforced.”) 7
preliminary hearing so it would be admissible.
MR. RION: I don’t think that’s what he testified to.
THE WITNESS: Well, let me rephrase that. In my computer when I
get somebody, all of their information is in there, so the Barns language
approved PRC.
BY MR. PICEK: So to the best of your understanding that
information lets you believe and know that somebody has reviewed this and
said his language is correct as far as they are concerned?
A. Correct. We had a vast number of individuals who came out on
PRC that were removed from PRC during this whole process. Mr. Fleming
was not one of them.
THE COURT: Back to your objection, I’ll overrule the objection, but
the Court is going to do its own independent analysis to determine whether or
not he was properly on PRC.
I am not going to rely on that, so I’ll consider it just for purposes of
what he knew and understood at the time.
{¶ 10} The following exchange occurred on recross-examination:
Q. * * * you don’t recall specifically what analysis was done on this
particular case as it relates to Barns or any other decision?
A. No. All I know is we were required to pull all the journal entries
from our cases, submit those to Columbus to our central office. At that point 8
they made a determination as to whether or not the language in the journal
entry was sufficient or not.
Q. So you’re speaking in general terms about all of your entries, not
specifically about Mr. Fleming’s?
A. Correct. If the language was not correct, and it was insufficient,
then those individuals were removed from PRC and were no longer on
{¶ 11} Detective Beau Collins of the Springfield Police Division testified that he is
a narcotics detective, and that he was involved in the Fleming investigation. He stated that
he received information from reliable confidential informants “as well as our own
independent surveillance” that Fleming was engaged in drug activity at the Ontario address,
and that he relayed that information to Barrett. Collins stated that on February 13, 2012, he
received a call from Barrett. Collins stated that Barrett advised him about “an incident
taking place involving Mr. Fleming where a gun had been shot at someone,” and that Barrett
intended to arrest him. Collins stated that he was not present when Fleming was arrested.
He stated that Barrett subsequently advised him that a handgun had been found in plain view
at the Ontario address, as well as powdered cocaine. Collins stated that he then prepared
the affidavit for the search warrant based upon that information, and presented it to the
judge, who signed it. Collins stated that he proceeded to the Ontario address to conduct the
search. Collins identified several items that were found in the house related to drug activity
that resulted in Fleming’s indictment. He stated that he had no reason to believe that there
was any defect in the imposition of post release control on Fleming from the 2003 case. [Cite as State v. Fleming, 2013-Ohio-503.] {¶ 12} On cross-examination, Collins stated that he relied on the information that
Barrett provided to him regarding what he found at Fleming’s residence in preparing the
affidavit for the search warrant.
{¶ 13} We note that Defendant’s Exhibit C is a copy of the transcript of Fleming’s
2003 plea and sentencing hearing which reflects that the court advised Fleming in part as
follows in the course of taking his plea: “In addition, you would be subject to a period of
post release control after release from prison, and it could be for up to five years of post
release control under conditions determined by the parole board. * * *.” When the court
proceeded to impose sentence, it made no mention of post release control.
{¶ 14} We further note that Collins’ affidavit in support of the search warrant
provides in part as follows:
On February 13th, 2012 the Ohio Adult Parole Authority received
information that Jermaine Fleming was residing at 1924 Ontario. Tony
Barrett of the Adult Parole Authority had also observed Fleming enter and
leave the residence at 1924 Ontario regularly, and officers with the
Springfield Police Division have also observed Jermaine Fleming at the
residence while in the area. Tony Barrett of the Adult Parole Authority went
to 1924 Ontario to arrest Jermaine Fleming on an Adult Parole Authority
Parole Violation. While at the residence, Ohio Adult Parole authority
Officer Tony Barrett located Jermaine Fleming, the resident of 1924 Ontario.
While inside the residence of 1924 Ontario, a brief search was conducted by
Officer Barrett pursuant to the rules of parole for Jermaine Fleming. Cocaine
was located inside a room that had Jermaine Fleming’s identification, 10
clothing and mail addressed to Jermaine Fleming. Jermaine Fleming is
currently on parole for Aggravated Burglary, a felony of the First Degree and
Possession of Drugs, a felony of the First Degree. He was released from
prison and placed on parole on August 25, 2010.
The Springfield Police Intelligence/Narcotics Unit was contacted after
the Cocaine was located and their assistance was requested.
The Springfield Police Division has received information from a
reliable confidential source, who has provided reliable information in the past
that has led to the arrest and conviction of individuals involved in the sale and
trafficking of narcotics that Jermaine Fleming is currently engaged in the
business of trafficking in narcotics at the above listed address.
There is at least one individual at the said dwelling that appears to be
selling narcotics, profiting thereby.
{¶ 15} After the hearing, the trial court sustained Fleming’s motion to suppress on
August 30, 2012. The court determined in part as follows:
The trial judge in the defendant’s 2003 case never placed him on
post-release control nor even mentioned post-release control at the sentencing
hearing. He did mention post-release control at the change of plea hearing
and in the sentencing entry, but in both instances he used the “up to” language
when post-release control was in fact mandatory for a specific number of
years - five.
*** [Cite as State v. Fleming, 2013-Ohio-503.] * * * [T]he-post release control portion of the defendant’s 2003
sentence is void. Therefore, he was not lawfully on post-release control and
not lawfully under the supervision of the Adult Parole Authority when he was
released from prison in August of 2010. The Conditions of Supervision,
although executed by the defendant, never took lawful effect. As a result,
[Officer] Barrett lacked the authority to conduct a warrantless search of the
defendant’s residence at 1924 Ontario, Springfield, Clark County, Ohio on
February 13, 2012.
During Barrett’s search of the defendant’s residence, he observed
powder cocaine and a 9mm handgun. His observations prompted the
seeking of the search warrant and the powder cocaine itself was the probable
cause upon which the search warrant was secured. As discussed above,
Barrett’s warrantless search of the defendant’s residence at 1924 Ontario,
while conducted in good faith, was nevertheless unlawful since the
post-release control portion of the defendant’s 2003 sentence is void.
Accordingly, * * * the subsequent search warrant secured by Detective
Collins, who was also acting in good faith, was improperly tainted by the
information garnered by Barrett’s unlawful search.
Detective Collins’ search warrant affidavit unquestionably presented
information derived from Barrett’s unlawful search of the defendant’s
residence. His decision to seek the search warrant and his actual securing of
the warrant were not independent of the information gained during the 12
unlawful entry.
In sum, the Court finds that Barrett’s warrantless entry and search of
the defendant’s residence was unlawful since the post-release control portion
of the defendant’s 2003 sentence is void. As information garnered by
Barrett’s search prompted Detective Collins to seek and secure a search
warrant for the premises, and Detective Collins included that information in
his search warrant affidavit, the evidence obtained pursuant to the execution
of the search warrant must be excluded.
{¶ 16} The State asserts two assignments of error. The State’s first assigned error
is as follows:
“THE TRIAL COURT ERRED BY FINDING THE DEFENDANT WAS NOT
PROPERLY PLACED ON POST RELEASE CONTROL IN 2003, AND THEREFORE
FINDING THAT THE PAROLE SEARCH OF HIS RESIDENCE WAS AN ILLEGAL
WARRANTLESS SEARCH.”
{¶ 17} As this Court has previously noted:
“Post-release control” involves a period of supervision by the Adult
Parole Authority after an offender’s release from prison that includes one or
more post-release control sanctions imposed under R.C. 2967.28. R.C.
2967.01(N). “[A]mong the most basic requirements of post-release control
notification per R.C. 2967.28 and the Ohio Supreme Court’s existing
precedent is that the court must both notify the offender of the length of the
term of post-release control that applies to his conviction(s) and incorporate 13
that notification into its journalized judgment of conviction pursuant to
Crim.R. 32(C).” * * * Post-release control is mandatory for some offenders
and is imposed at the discretion of the Parole Board for others. * * * . State
v. Blackshear, 2d Dist. Montgomery No. 24302, 2011-Ohio-2059, ¶ 11.
{¶ 18} The State directs our attention in part to State v. Lynch, 9th Dist. Lorain No.
11CA010031, 2012-Ohio-2975. Therein, Lynch’s amended “sentencing entry imposed
postrelease control and mistakenly set forth some discretionary language,” namely that
post-release control was mandatory “‘up to’ a maximum of five years.” Id., ¶ 2, 14. After
he completed his prison sentence, Lynch filed a motion to terminate post-release control
supervision, which the trial court denied. Id., ¶3. On appeal, the Ninth District
determined:
because Lynch’s entry “contained sufficient language to authorize the Adult
Parole Authority to exercise postrelease control” over him, the trial court did
not err in denying Lynch’s motion to terminate postrelease control on the
basis that the sentencing entry mistakenly included discretionary language,
where the oral notification at the sentencing hearing properly advised Lynch
of the terms of postrelease control. See Watkins [v. Collins, 111 Ohio St.3d
425, 2006-Ohio-5082] at ¶ 53. Id., ¶ 14.
The State’s reliance on Lynch, however, is misplaced, since the Ohio Supreme Court
recently overruled that decision in State v.Lynch, Sup. Ct. No. 2012-1361, 2012-Ohio-5730
(Dec. 6, 2012), at ¶ 1, on the authority of State v. Billiter, 134 Ohio St.3d 103,
2012-Ohio-5144, 980 N.E.2d 960. 14
{¶ 19} In Billiter, in a four-to-three decision, the Supreme Court of Ohio addressed
a certified conflict between this Court and the Fifth District regarding “whether res judicata
bars a criminal defendant from arguing that his plea is void due to an earlier
postrelease-control sentencing error when the defendant has entered a plea of guilty to
escape.” Id., ¶ 1. Billiter was originally sentenced in 1998 to three years in prison and to a
mandatory term of post release control of “‘up to a maximum of three (3) years,’” rather than
the mandatory five-year period required by R.C. 2967.28(B) for a first degree felony. Id., ¶
2. Billeter did not appeal his sentence, and he was released from prison in 2001. Billeter
was subsequently indicted for escape from his post release control supervision, and he pled
guilty to the charge. Id., ¶ 3. Billeter was placed on community control for three years,
and he did not appeal. Id. Billeter violated the terms of his community control, and “the
trial court revoked his probation and sentenced him to six years’ imprisonment for escape.”
Id., ¶ 4. Billeter did not appeal.
{¶ 20} Four years later, Billeter filed a pro se motion to vacate his conviction for
escape, asserting that “because the postrelease-control portion of his 1998 sentence was
contrary to law - up to three years instead of the mandatory five - it was void.” Id., ¶ 5.
The trial court’s decision overruling the motion was affirmed on appeal, and the Fifth
District held that “based upon a habeas corpus case, Watkins v. Collins, 111 Ohio St.3d 425,
2006-Ohio-5082, 857 N.E.2d 78, the trial court’s incorrect sentence had nevertheless given
Billeter proper notice that he was subject to post-release control, and so the sentence was not
void. Consequently, res judicata applies to his conviction for escape.” Id. Billeter did not
appeal to the Ohio Supreme Court. Id. Thereafter, the Ohio Supreme court issued State v. 15
Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, “which held, ‘[I]n the
absence of a proper sentencing entry imposing postrelease control, the parole board’s
imposition of postrelease control cannot be enforced.’ Id. at 70.” Id. (See fn. 1 herein).
Billeter did not seek reconsideration of the Fifth District’s decision. Id.
{¶ 21} In 2010, “Billeter, through counsel, moved to withdraw his 2004 guilty plea
to escape, on the theory that he had never been legally placed on post-rease control.
Therefore, he claimed, ‘he is actually innocent’ of the crime of escape and is serving a
sentence that is a legal nullity. The trial court denied his motion, and the Fifth District
affirmed.” Id., ¶ 6. The Supreme Court of Ohio concluded as follows:
[T]he trial court failed to sentence Billeter to a correct term of
postrelease control. Accordingly, his sentence was void. [State v. Fischer,
128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the
syllabus]. The trial court’s incorrect sentence for postrelease control in 1998
was insufficient to confer jurisdiction upon the Adult Parole Authority to
impose up to three years of postrelease control on Billiter. [State v.] Jordan,
104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 17. Although the
Adult Parole Authority did place Billeter under supervision, see, R.C.
2921.01(E), and Billiter did violate the terms of that postrelease control in
violation of R.C. 2921.34(A)(1), Billiter’s escape conviction was based on an
invalid sentence. Accordingly, the trial court was without jurisdiction to
convict him on the escape charge. Id., ¶ 12.
{¶ 22} The majority noted as follows: 16
As we have consistently stated, if a trial court imposes a sentence that
is unauthorized by law, the sentence is void. “ ‘The effect of determining
that a judgment is void is well established. It is as though such proceedings
had never occurred; the judgment is a mere nullity and the parties are in the
same position as if there had been no judgment.’ ” * * * We said in Fischer
that a void postrelease-control sentence “is not precluded from appellate
review by principles of res judicata, and may be reviewed at any time, on
direct appeal or collateral attack.” Id. at paragraph one of the syllabus.
Id.., at ¶ 10.
{¶ 23} Finally, we note this Court’s decision in State v. Adkins, 2d Dist. Greene No.
2010-CA-69, 2011-Ohio-2819. Therein, “the trial court advised Adkins orally, and in its
re-sentencing entry, that he was subject to mandatory post-release control for ‘up to’ five
years,” when he “was subject to mandatory post-release control for the entire five years.”
Id., ¶ 6. Unlike Fleming, Adkins, upon his release from prison, filed a motion to vacate a
void sentence and terminate post-release control. ¶ 1, 3. This Court determined that the
“portion of the trial court’s sentencing entry imposing post-release control is vacated.” ¶
14. This Court further noted, in addition to the specific scenario presented in Adkins, that
* * * cases will arise where a released prisoner is placed on technically
incorrect post-release control and then has his premises searched under the
APA’s supervisory authority. If felony contraband is found, the “void”
post-release control analysis vitiates the APA’s supervision, and the agency’s
authority to search, which may result in the suppression of evidence, even if 17
obtained in good faith pursuit of its duties. See Blackshear.
Id., ¶ 11.
{¶ 24} Fleming was advised that he “could be” subject to post-release control “for
up to five years” in the course of entering his pleas, no mention of postrelease control was
made in the course of his sentencing, and the judgment entry of conviction merely provides
that postrelease control “is mandatory in this case up to a maximum of five years.” In other
words, as the trial court correctly found, Fleming was not properly placed on post-release
control. Accordingly, Fleming’s sentence to post-release control is void, and Barrett’s
supervision and authority to search are accordingly null and void. Since the trial court
properly concluded that Fleming was not lawfully placed on post-release control in 2003,
and that Barrett’s search of his residence was an illegal warrantless search, the State’s first
assigned error is overruled.
{¶ 25} The State’s second assigned error is as follows:
“THE TRIAL COURT ERRED BY APPLYING THE EXCLUSIONARY RULE
AND HOLDING THAT THE GOOD FAITH EXCEPTION DID NOT APPLY TO THE
SEARCH OF THE DEFENDANT’S RESIDENCE BY THE POLICE WITH A SEARCH
WARRANT.”
{¶ 26} As this Court has previously noted:
The Supreme Court established the “good faith” exception to the
exclusionary rule in United States v. Leon (1984), 468 U.S. 897, 918-923,
926, 104 S.Ct. 3405, 82 L.Ed.2d 677. In doing so, the Supreme Court
declined to apply the exclusionary rule when police reasonably and in good 18
faith relied upon a warrant subsequently declared to be invalid, because
excluding evidence under such circumstances would not deter police
misconduct. Id. at 922, 104 S.Ct. 3405, 82 L.Ed. 677. The good-faith
inquiry established in Leon is confined to the objectively ascertainable
question of whether a reasonably well-trained officer would have known that
the search was illegal despite the issuance of a warrant; subjective beliefs of
the officer are not to be considered. * * * The Supreme Court now prefers to
discuss this issue in terms of an officer’s “objectively reasonable reliance” on
a warrant, commenting that the term “good faith” has perhaps been
confusing. * * *State v. Jacob, 185 Ohio App.3d 408, 2009-Ohio-7048, 924
N.E.2d 410, ¶ 27 (2d Dist.).
{¶ 27} As this Court has further noted, however:
The derivative-evidence rule, or fruit-of-the-poisonous-tree doctrine
as it is widely known, requires suppression of evidence that was seized in a
seemingly lawful manner but about which police learned because of a prior
constitutional violation such as an illegal search or seizure. Nardone v.
United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939) * * * . The
exclusionary rule reaches not only primary evidence obtained as a direct
result of an illegal search or seizure, but also evidence that is subsequently
discovered and derivative of that prior illegality. Id.; Wong Sun v. United
States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). State v.
McLemore, 197 Ohio App.3d 726, 2012-Ohio-521, 968 N.E.2d 612, ¶ 20 (2d 19
Dist.).
Derivative evidence is subject to exclusion “up to the point at which the connection with the
unlawful search becomes so ‘attenuated as to dissipate the taint’ of the particular illegality. *
* * Such evidence is exempt from suppression under the ‘independent source’ doctrine.”
State v. Belcher, 2d Dist. Montgomery No. 24385, 2011-Ohio-5015, ¶ 42. “[T]he
independent source rule generally applies to ‘all evidence acquired in a fashion untainted by
the illegal evidence-gathering activity.’ * * * .” Id.
{¶ 28} We agree with the trial court that Collins acted in good faith in obtaining a
warrant and searching Fleming’s residence; Collins testified that he understood Fleming to
be on lawful post-release control. As noted above, however, Fleming was not properly
placed under supervision, and the imposition of post-release control was unenforceable. As
this Court noted in Adkins, the “‘void’ post-release control analysis vitiates the APA’s
supervision, and the agency’s authority to search.” The contraband subsequently seized by
Collins did not arise from an independent source, but rather, as the trial court concluded, was
wholly derivative of the initial illegal search which produced the weapon and the cocaine.
Accordingly, the evidence obtained in Fleming’s residence pursuant to the search warrant
was subject to the exclusionary rule.
{¶ 29} The State’s second assigned error is overruled, and the judgment of the trial
court is affirmed.
FAIN, P.J. and FROELICH, J., concur.
Copies mailed to: 20
Andrew R. Picek Jon Paul Rion Nicole Rutter-Hirth Hon. Douglas M. Rastatter