[Cite as State v. Garza, 2013-Ohio-5492.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 7-13-04
v.
TOMAS G. GARZA, OPINION
DEFENDANT-APPELLANT.
Appeal from Henry County Common Pleas Court Trial Court No. 12CR0076
Judgment Affirmed
Date of Decision: December 16, 2013
APPEARANCES:
Gregory L. VanGunten for Appellant
John H. Hanna and J. Hawken Flanagan for Appellee Case No. 7-13-04
WILLAMOWSKI, J.
{¶1} Defendant-appellant, Tomas G. Garza (“Garza”), appeals the
judgment of the Henry County Court of Common Pleas denying his motion to
suppress. For the reasons that follow, we affirm the judgment of the trial court.
{¶2} On July 23, 2012, Patrolman Justin Ruffer (“Ruffer”) of the Napoleon
Police Department appeared before the judge of the Napoleon Municipal Court for
the purpose of obtaining a search warrant for Garza’s residence located at 327
Carey St. in Napoleon, Ohio. Ruffer presented the judge with a sworn affidavit in
support of the search warrant. The affidavit provided the following facts.
{¶3} Ruffer had been a patrolman for the Napoleon Police Department in
Henry County, Ohio, for approximately 1 year and 1 month. He had been trained
and educated in the area of criminal investigations. On July 23, 2012, the
Napoleon Police Department was notified of a drug transaction occurring at 327
Carey St. in Napoleon. The residence was rented by Tomas Garza. Ruffer
investigated the report as a drug possession case and he made contact with a
witness who had observed the residence at 327 Carey St. for the previous month
and a half. The witness informed Ruffer that during that time she had observed
considerable traffic in and out of the residence. Among other examples, she had
observed the following activity repeating in front of the residence: a maroon
colored GMC pickup truck would stop at or near the residence and “drop off” a
female; the female would enter the residence at 327 Carey St.; the female would
-2- Case No. 7-13-04
stay at or in the residence for a few minutes and would leave to be then picked up
by the driver of the maroon colored GMC pickup truck.
{¶4} The affidavit further stated that the witness had observed these
specific events on the date of July 23, 2012: a female exited the maroon colored
GMC vehicle; the female had short brownish red hair and was wearing a red T-
shirt and blue jeans; the female entered the residence at 327 Carey St., together
with Garza; approximately 10 minutes later, the female exited the residence and
was “stuffing an unknown item into her purse”; the female got into the maroon
colored GMC pickup truck in front of 942 Haley Ave. Ruffer, who observed the
described vehicle, initiated a traffic stop on the vehicle due to a marked lanes
violation. Ruffer identified the driver of the vehicle as Douglas Nash and the
passenger as Stephanie Nash. Stephanie Nash matched the description given by
the witness of the female who had visited Garza’s residence. After obtaining a
verbal consent to search the vehicle, Ruffer found two tin foil balls under the
vehicle’s front passenger seat; they were identified by the female as cocaine.
Ruffer also found a plastic bag with white powder in the center counsel of the
vehicle that he believed to be cocaine. Based on the information provided by the
witness and the discovery of illegal narcotics in the vehicle, Ruffer believed that
Stephanie Nash had obtained the illegal narcotics from the residence at 327 Carey
St.
-3- Case No. 7-13-04
{¶5} The judge who reviewed Ruffer’s affidavit made general inquiries as
to its contents.1 (R. 39, Tr. of Proceedings at 14, Dec. 3, 2012.) We do not have
before us a record of the inquiries made by the judge. We note that the record
includes a handwritten statement made by the witness on July 23, 2012, where the
witness is identified with her first and last name, address, date of birth, and a state
ID number. (R. 39, Tr. of Proceedings Ex. 1.) That statement includes some of
the information contained in Ruffer’s affidavit and further provides that Garza’s
residence is frequented by a person known to the witness as a drug user. The
record does not indicate whether the judge considered the witness’s handwritten
statement prior to issuing the warrant. The judge issued a warrant to search
Garza’s residence for “Illegal Narcotics and/or Drug Paraphernalia.” (Tr. of
Proceedings Ex. 3, Search Warrant.) Subsequently, Garza was arrested and
charged with possession of cocaine.
{¶6} On November 21, 2012, Garza filed a motion to suppress, requesting
the trial judge to rule that all physical evidence seized by the Napoleon Police
Department incidental to the search of his residence on July 23, 2012 and all
statements Garza made incidental to the search be excluded from the prosecution
of the case against him. (R. 17, Mot. to Suppress, Nov. 21, 2012.) In support of
his motion, Garza argued that the affidavit of Patrolman Ruffer was insufficient to
1 Garza does not challenge the trial court’s finding that the judge who issued the search warrant questioned Ruffer regarding the affidavit prior to approving the search warrant and that there was no indication of Ruffer being untruthful in his representations to the judge.
-4- Case No. 7-13-04
provide the issuing judge with probable cause for a search warrant. Garza
specifically contended that the warrant was deficient because it did not identify the
witness and did not provide any reference to the witness’s reliability. He further
asserted that even if the witness were reliable, she did not observe anything
criminal and therefore, her statements were insufficient to provide probable cause
for a search warrant. Garza additionally argued that the affidavit failed to provide
any connection between the drugs found in the car driven by the Nashes (“the
Nash vehicle”) and Garza or his residence.
{¶7} On December 13, 2012, the trial judge conducted a hearing on the
motion to suppress. (See R. 39, Tr. of Proceedings.) Garza was present together
with his attorney. Ruffer and the witness who had provided the relevant
information for the affidavit testified at the hearing. Following the hearing, the
trial court denied Garza’s motion to suppress. The trial court found that although
“[t]he affidavit does not identify the source of the information which led to the
stop of the vehicle,” the source “was never portrayed as a confidential informant.”
(R. 26, J. Entry at 3, Dec. 18, 2012.) The trial court further found that the source’s
suspicions of drug activity were corroborated by the presence of cocaine in the
Nash vehicle, which matched the source’s description of the vehicle from 327
Carey St. The trial court also considered, as supportive of the probable cause, the
fact that the vehicle was present at the residence for short periods of time over the
-5- Case No. 7-13-04
previous month and that it was stopped within “the close proximity in time and
place” to the events described by the witness. (Id.)
{¶8} Subsequently, Garza entered a plea of no contest to possession of
cocaine and was sentenced to a five-year prison term and five years of post-release
control. The sentence was stayed pending this appeal in which Garza raises one
assignment of error.
THE TRIAL COURT COMMITTED CONSTITUTIONAL ERROR BY FAILING TO SUPPRESS EVIDENCE DERIVED FROM A SEARCH INCIDENT-TO-WARRANT WHERE: A.) THE COURT FAILED TO CONSCIENTIOUSLY REVIEW THE SUFFICIENCY OF THE PROBABLE CAUSE AFIDAVIT [SIC] TO INSURE THAT THE ISSUING MAGISTRATE DID NOT ABDICATE HER DUTY BY ISSUING THE WARRANT BASED UPON THE BARE BONES CONCLUSIONS OF OTHERS; AND B.) THE COURT CONSIDERED EVIDENCE OUTSIDE THE FOUR CORNERS OF THE AFFIDAVIT AND FAILED TO FOLLOW LEGAL PRECEDENT IN THIS ARENA (U.S. CONSTITUTION, 4TH AMENDMENT, OHIO CONSITUTION [SIC], ARTICLE I, §14).
{¶9} We will start by addressing the second point of Garza’s assignment of
error. Garza challenges the trial court’s findings of fact, as contained in its
judgment entry on the suppression motion, arguing that the trial court improperly
considered evidence outside of the four corners of the warrant application.
Evidence to be Considered in Reviewing Sufficiency of the Affidavit in Support of a Search Warrant
{¶10} When reviewing the sufficiency of an affidavit in support of a search
warrant, both the trial court and the appellate court are limited to the information
-6- Case No. 7-13-04
that was “brought to the attention of the [issuing judge].” State v. Graddy, 55
Ohio St.2d 132, 134, 378 N.E.2d 723 (1978), fn.1; State v. OK Sun Bean, 13 Ohio
App.3d 69, 71, 468 N.E.2d 146 (6th Dist.1983) (“the affidavit's legal sufficiency
may be determined only from the information actually furnished to the issuing
judge.”) (Emphasis sic.) That often implies that the reviewing court is bound by
the “four corners” of the affidavit, as that is often the only record available before
it. OK Sun Bean, 13 Ohio App.3d at 71. See, e.g., State v. King, 157 Ohio App.3d
93, 2004-Ohio-2221, 809 N.E.2d 71, ¶ 12 (3d Dist.) (limiting the review of the
sufficiency of probable cause in the affidavits “to the affidavits themselves, as that
was the evidence before the issuing magistrate.”).
{¶11} It does not necessarily mean, as Garza contends in his brief, “that all
courts reviewing the sufficiency of a probable cause affidavit confine themselves
to the sworn statements contained within the four corners of the affidavit itself. * *
* This rule applies to the issuing [judge] as well as all courts reviewing the
matter.” (App’t Br. at 5.) Garza’s suggestion is expressly contradicted by Crim.R.
41(C), which allows for additional evidence, in the form of the affiant’s testimony,
to be considered by the issuing judge. See OK Sun Bean, 13 Ohio App.3d at 71,
fn. 2 (“Crim.R. 41(C) makes provision for an affidavit hearing, if needed, and
further provides that the affiant’s testimony from such hearing shall be admissible
at a subsequent hearing on a motion to suppress.”). Crim.R. 41(C) states:
-7- Case No. 7-13-04
Before ruling on a request for a warrant, the judge may require the affiant to appear personally, and may examine under oath the affiant and any witnesses the affiant may produce. Such testimony shall be admissible at a hearing on a motion to suppress if taken down by a court reporter or recording equipment, transcribed, and made part of the affidavit.
Crim.R. 41.
{¶12} The record before us shows that Ruffer appeared personally before
the issuing judge and was questioned under oath. (Tr. of Proceedings Ex. 3,
Search Warrant; Tr. of Proceedings at 14.) It does not appear that his testimony
was “taken down by a court reporter or recording equipment” and transcribed.
Crim.R. 41. Accordingly, it was not, nor could it have been, made part of the
affidavit pursuant to Crim.R. 41, and we do not rely on it.
{¶13} The record before us does not disclose what other information, if
any, was available to the issuing judge. Our record on appeal includes the
Voluntary Statement given to Ruffer by the witness,2 Affidavit in Support of
Search Warrant, the Search Warrant itself, and the Transcript of Proceedings from
the trial court’s hearing on the motion to suppress. Therefore, for the purpose of
this review, we will presume that the issuing judge signed the search warrant
based on the information provided to her by Ruffer, insofar as it is evidenced to be
so provided by the above documents. It follows that the trial court was not
2 Because the record does not indicate whether this statement was provided to the issuing judge or whether it was examined by the issuing judge, we do not consider this statement in arriving at our decision.
-8- Case No. 7-13-04
allowed to consider any evidence adduced at the hearing that was not proven to be
known to the issuing judge prior to the issuance of the search warrant.
{¶14} Garza points out that the trial court made fourteen findings of fact,
some of which were derived from the suppression hearing and were not included
in the affidavit in support of the search warrant for 327 Carey St. For example, the
trial court identified the source of the information that Ruffer included in his
affidavit, although the identity of that witness was not disclosed on the face of the
affidavit. Further, the trial court found that the maroon colored pickup truck
visited Garza’s residence weekly, although the affidavit did not indicate the
frequency of the Nash vehicle visits to the residence. The trial court also found
that the driver of the maroon pickup truck denied the drugs to be his property,
while the female passenger refused to identify the drugs’ origin. Although these
facts are not included in the Affidavit in Support of Search Warrant, we cannot
conclude, as Garza urges us to, that the issuing judge was unaware of the
informant’s identity or of any other additional facts. But because we do not have
before us a record of such facts being presented to the issuing judge, we do not
consider them in arriving at our decision herein.3
{¶15} We also find that although the trial court made its fourteen findings
of fact based on the testimony presented at the suppression hearing, it did not
3 As a corollary, we do not consider the facts cited by Garza in his brief, such as the fact that the informant “admitted that she lacked any ‘inside information’ of drug trafficking from Mr. Garza’s home.” (App’t Br. at 3.)
-9- Case No. 7-13-04
expressly apply these fourteen findings to its analysis of the affidavit’s sufficiency.
Rather, the trial court’s ruling on the suppression motion was based on the facts in
the affidavit: the information provided by the witness and corroborated “by the
valid traffic stop and consent search of the Nash vehicle which revealed the
presence of cocaine,” as well as by “the prior presence of the vehicle at the
residence for short periods over the last month and the close proximity in time and
place to the recent stop.” (R. 26, J. Entry at 3.)
{¶16} Garza takes issue with the trial court’s finding that the vehicle was
stopped within “the close proximity in time and place” to the events described by
the witness. He argues that since the affidavit does not state where Ruffer stopped
the “Nash vehicle,” the trial court’s finding of the close proximity is improper as it
is unsupported by the affidavit. Indeed, the affidavit does not specify the time and
place of the traffic stop, but it states, “The witness indicated that the female got
into a maroon colored GMC pick-up in front of 942 Haley Ave. in the City of
Napoleon. The affiant observed the described vehicle and initiated a traffic stop
on the vehicle due to a marked lanes violation.” (Tr. of Proceedings Ex. 2, Aff.
Supp. Search Warrant.) These two sentences neither support nor contradict an
inference that the traffic stop occurred shortly after the female got into the vehicle
and within a close distance to the place. Further, these statements do not preclude
an inference by the trial court or by the issuing judge that the cocaine found in the
Nash vehicle came from Garza’s residence. See State v. Cook, 3d Dist. Putnam
-10- Case No. 7-13-04
No. 12-02-12, 2003-Ohio-1794, ¶ 7, quoting State v. OK Sun Bean, 13 Ohio
App.3d 69, at paragraph two of the syllabus (“An appellate court, in assessing the
legal sufficiency of an affidavit supporting a probable cause finding, ‘may draw
reasonable, common sense inferences from the allegations contained therein’ if
such inferences are drawn from facts already set forth in the affidavit.”); State v.
Kinney, 83 Ohio St.3d 85, 96, 698 N.E.2d 49 (1998) (“magistrates ought to be
permitted to make common-sense inferences supported by other evidence in the
affidavits.”). Accordingly, Garza’s challenge to the trial court’s decision, as it
relates to its finding of “the close proximity in time and place” between the events
described by the witness and the stop of the Nash vehicle, is not well taken. Even
if this specific “proximity” finding by the trial court went beyond the facts
provided in the affidavit, it did not invalidate the trial court’s conclusion that “the
information before [the issuing judge] justified issuance of the warrant.” (R. 26, J.
Entry at 4.)
{¶17} Continuing our analysis of Garza’s challenge to the trial court’s
decision denying his motion to suppress, we will look at the face of the affidavit,
as this is the only tangible evidence that the record shows to have been in front of
the issuing judge at the time when she issued the warrant. But we will also
consider the fact that the issuing judge questioned Ruffer about the contents of the
affidavit, as is evidenced by the warrant itself and by Ruffer’s subsequent
testimony at the hearing.
-11- Case No. 7-13-04
Standard of Review
{¶18} Garza claims that in its decision on his motion to suppress, the trial
court used an improper standard of review that, although mandated by the Ohio
Supreme Court, contradicts with the “more plenary standard employed in the Sixth
Circuit.” (App’t Br. at 4.) He urges us to apply a “de-novo-with-deference”
review that would require us to review de novo the sufficiency of the affidavit and
then, give “great deference” to the judge’s decision to issue the warrant. We are
unpersuaded by Garza’s extensive argument in favor of changing the long
established precedent and we continue to follow the standard of review established
by the Ohio Supreme Court that expressly rejected the use of a de novo standard
for review of the affidavit in support of a search warrant, characterizing it as
“substitut[ing] [the reviewing court’s] judgment for that of the [issuing judge].”
State v. George, 45 Ohio St.3d 325, 332, 544 N.E.2d 640 (1989).
In reviewing the sufficiency of probable cause in an affidavit submitted in support of a search warrant issued by a magistrate, neither a trial court nor an appellate court 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.
-12- Case No. 7-13-04
Id. at paragraph 2 of the syllabus, citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct.
2317 (1983).
{¶19} Therefore, the question on this appeal is not whether we would find
probable cause to issue the search warrant if the information, as provided to us by
the record on appeal, had been presented to us on July 23, 2012 by Patrolman
Ruffer. Rather, our review of the issuing judge’s determination of probable cause
is limited to ensuring that the judge “had a substantial basis for concluding that
probable cause existed.” Id.
{¶20} In determining whether the issuing judge abdicated her duty in
issuing the warrant, we are guided by the common sense “totality-of-the-
circumstances test” of the Ohio Supreme Court, which stated in George:
The totality-of-the-circumstances test of Illinois v. Gates, supra, is concisely set forth in that decision at 238–239, 103 S.Ct. at 2332:
“The 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.”
(Emphasis added.) Id. at 329; see also State v. Thomas, 61 Ohio St.2d 223, 227-
28, 400 N.E.2d 401 (1980), citing United States v. Ventresca, 380 U.S. 102, 108,
85 S.Ct. 741 (1965) (“In examining the affidavit for a search warrant in the cause
sub judice, we are guided by the interpretive rules that such affidavits are to be
tested in a common sense manner * * * .”). We will apply this common sense
-13- Case No. 7-13-04
totality-of-the-circumstances test to both “the original probable cause
determination” of the issuing judge and to our determination of whether the
issuing judge had a “substantial basis” for finding probable cause. George, 45
Ohio St.3d at 329.
{¶21} Garza argues for the use of the “more plenary review” in this case
because of the existence of a hearsay informant. He asserts that “the more plenary
standard becomes necessary where informants’ [sic] hearsay within the affidavit is
legally discounted on appeal,” for example when “some of the facts in the affidavit
before the magistrate have since been stricken” due to being “not correctly before
the issuing magistrate.” (App’t Br. at 12-13.) This argument is misplaced because
we have no basis for legally discounting the witness’s statements on this appeal
and no facts from the affidavit have been stricken.
{¶22} Therefore, in our review of the sufficiency of the affidavit, we apply
the deferential standard of review mandated by the Ohio Supreme Court.
Conscientious Review of the Sufficiency of the Affidavit
{¶23} Garza contends that the trial court “failed to conscientiously review
the sufficiency of the probable cause afidavit [sic]” that was allegedly issued based
upon the “bare bones” conclusions of others and that failed “to establish the
evidentiary ‘nexus’ between the drugs found off-site in the ‘Nash vehicle’ and the
search of Mr. Garza’s home.” (App’t Br. at 4.)
-14- Case No. 7-13-04
{¶24} Garza discusses a factually similar Ohio Supreme Court case, State v.
Graddy and suggests that, based on this precedent, we are bound to hold that the
affidavit here was insufficient for the probable cause determination because it
provided no basis to conclude that the informant was credible or her information
reliable. See State v. Graddy, 55 Ohio St.2d 132, 378 N.E.2d 723 (1978).
Although Graddy was decided prior to the United States Supreme Court’s decision
in Gates, which changed the standard of review for sufficiency of probable cause
affidavits, Garza suggests we follow the Ohio Supreme Court’s analysis as it
relates to the facts of the current case.
{¶25} In Graddy, a warrant was issued based on an affidavit alleging that a
police detective believed that drugs were located in the described premises. That
affidavit contained allegations from an informant whose reliability was
unsupported by any facts in the affidavit. Id. at 136-137. Further, the conclusion
that drug activity was occurring was also unsupported by any facts in the affidavit.
Id. The Ohio Supreme Court held that “the belief or conclusion of the affiant, or
the informant in a situation where hearsay is furnished by informant to the affiant,
without presentation of the facts to the magistrate upon which the conclusion is
based, is constitutionally an insufficient basis upon which the magistrate may
determine the existence of probable cause.” (Emphasis added.) Id. at 134. The
court specifically focused on the fact that the affidavit lacked “Any of the
-15- Case No. 7-13-04
underlying circumstances from which the informant concluded the drugs were on
the premises.” Id. at 139.
{¶26} The distinctions between Graddy and the current case are readily
apparent. First, the affidavit here stated that the informant’s conclusions or
suspicions of criminal activity were based on her observation of “considerable
traffic in and out of the residence,” her observation of the maroon GMC pick-up
truck for the last month and a half stopping in front of Garza’s residence and
dropping off a female who visited for short periods of time, and her observation on
the day in question of the female visiting for a short period of time and stuffing an
unknown item into her purse while exiting the residence. Therefore, the affidavit
had more than “bare bones conclusions”—it presented the facts upon which the
informant’s conclusion was based. Second, the affidavit herein recited
information and criminal evidence gathered by Ruffer in the subsequent
observation and search of the Nash vehicle. Thus, unlike the affidavit in Graddy,
the affidavit in this case provided the issuing judge with additional factual bases
for probable cause that a criminal activity occurred.
{¶27} The Ohio Supreme Court held that “a common and acceptable basis
for the informant’s information is his personal observation of the fact or events
described to the affiant and that these observations may be given added weight by
the extent of the description or by corroborative police surveillance and
information.” Graddy, 55 Ohio St.2d at 139-140, citing State v. Karr, 44 Ohio
-16- Case No. 7-13-04
St.2d 163, 165, 339 N.E.2d 641 (1975). This case involves the informant’s
personal observation of the facts and events described to Ruffer, and additional
police information about the finding of drugs in the vehicle that was the subject of
informant’s tip. Accordingly, the Ohio Supreme Court’s holding in Graddy does
not contradict, but rather supports, the trial court’s determination that the search
warrant for Garza’s residence was properly issued upon the information provided
by the witness, as well as the observations and findings made by Ruffer who was
trained and educated in the area of criminal investigations.
{¶28} Furthermore, subsequent to Gates, the affiant is not required “to
reveal his informant’s ‘basis of knowledge’ and provide sufficient facts to
establish the informant’s ‘veracity’ or the ‘reliability’ of the informant’s report” in
order to give grounds for a probable cause finding. See George, 45 Ohio St.3d at
328, fn. 3. Instead, the magistrate must be provided with enough information 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.”
(Emphasis added.) Id. at 329, quoting Gates, 462 U.S. at 238-239. See also State
v. Gibler, 3d Dist. Defiance No. 4-2000-06, 2000 WL 1344545, *6 (“an
unidentified informant’s ‘reliability,’ ‘veracity,’ and ‘basis of knowledge’ should
not be examined as separate elements, but rather are merely part of the totality of
-17- Case No. 7-13-04
the information to be weighed by the [issuing judge] in making a probable cause
determination.”).
{¶29} Therefore, Garza fails in his attempt to invalidate the affidavit on the
basis that it did not provide the issuing judge “with sufficient information to
substantially and independently evaluate the credibility and reliability of the
unnamed hearsay informant.” (App’t Br. at 17.)
{¶30} Garza further contends that, even if the informant was credible, the
information provided by her—observation of considerable traffic, the short visits
of the maroon colored GMC vehicle, and the woman exiting Garza’s residence
stuffing an unknown object into her purse—was susceptible to an innocent
explanation and so, could not have been the basis for the probable cause
determination. The trial court, however, did not uphold the search warrant relying
solely on this information from the witness, pointing out that it was “nothing more
than a suspicion and in and of itself not enough for a warrant.” (R. 26, J. Entry at
3.) The trial court looked at all of the circumstances, including the results of the
stop and search of the Nash vehicle, and held that these additional circumstances
sufficiently verified “the reliability of the information provided.” (Id. at 4.) We
agree with the trial court’s conclusion that Ruffer’s observations and finding of
drugs in the Nash vehicle verified the reliability of the informant’s suspicion of
criminal activity at the residence, which arose from her observation of the traffic
in front of Garza’s residence and the Nashes’ short visits there. Ruffer’s
-18- Case No. 7-13-04
observations did “more than merely bolster the informant’s tip,” they “provided
the underlying circumstances” from which the issuing judge could determine
whether Ruffer and the informant were “justified in concluding that illegal activity
is taking place.” Graddy, 55 Ohio St. at 140.
{¶31} Garza points out that the affidavit lacks any assertion of the witness
having “inside information of a ‘crime-in-fact’” or the Nashes themselves
revealing “the source of the drugs found in their vehicle.” (App’t Br. at 18.) This,
according to Garza, results in a lack of a “nexus” between Garza’s residence and
the criminal activity. (Id. at 21.) He claims that, even if the witness’s information
was reliable and showed that the Nashes were involved in a criminal activity, it
was improper for Ruffer, the issuing judge, and the trial court to infer that the
drugs could be found in Garza’s residence, because there was no direct proof of
connection between the drugs found in the Nash vehicle and Garza’s house.
Although Garza is correct in his assertion that there was no direct proof that the
drugs found in the Nash vehicle came from his residence, we do not agree that this
invalidates the search warrant.
{¶32} The amount of proof sufficient for a probable cause determination
does not necessarily require certainty that criminal activity is occurring at the
defendant’s premises. All that is required is “a fair probability that contraband or
evidence of a crime will be found in a particular place.” George, 45 Ohio St.3d
325, at paragraph one of the syllabus, quoting Gates, 462 U.S. at 238-239.
-19- Case No. 7-13-04
The term probable cause, according to its usual acceptation, means less than evidence which would justify condemnation. It imports a seizure made under circumstances which warrant suspicion. More recently, we said that the quanta of proof appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant. Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate’s decision. It is clear that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.
(Alterations and internal quotation marks omitted.) (Emphasis sic.) Id. at 329,
quoting Gates, 462 U.S. at 235. Likewise, in our review of the affidavit, we are
not required to find proof of inside knowledge or of a direct connection between
the drugs found in the Nash vehicle and Garza’s residence. We merely ensure that
the issuing judge had a “substantial basis” for concluding that there was probable
cause that such direct connection existed. Id.
{¶33} As we concluded above, the affidavit presented to the issuing judge
provided more than a mere suspicion of possible criminal activity occurring at
Garza’s residence. Looking at the totality of the circumstances, we hold that the
issuing judge, could properly infer that the criminal evidence, found in the vehicle
that visited Garza’s premises frequently for short periods of time and that was
stopped on July 23, 2012, after it left Garza’s residence, came from that residence.
Therefore, under the deferential review, mandated by the Ohio Supreme Court, we
hold that the issuing judge had a substantial basis for concluding that the
information presented to her by Ruffer was sufficient for a fair probability that
-20- Case No. 7-13-04
“Illegal Narcotics and/or Drug Paraphernalia” were concealed in Garza’s
residence at 327 Carey St. on July 23, 2012. (Tr. of Proceedings Ex. 3, Search
Warrant.)
{¶34} Based upon the foregoing, we hold that the trial court did not err in
denying Garza’s motion to suppress. For that reason, his assignment of error is
not well taken. Having found no error prejudicial to Appellant, in the particulars
assigned and argued, we affirm the judgment of the Henry County Court of
Common Pleas.
PRESTON, P.J. and SHAW, J., concur.
/jlr
-21-