[Cite as State v. Lackey, 2023-Ohio-3720.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230025 TRIAL NO. B-2106423 Plaintiff-Appellee, : O P I N I O N. vs. :
NORMAN LACKEY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 13, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Jackson Law Office, LLC, and Kory A. Jackson, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Judge.
{¶1} Defendant-appellant Norman Lackey appeals his convictions for
various drug and weapons offenses. Because the search warrant for his residence was
supported by probable cause and the information in the affidavit submitted to obtain
the search warrant was not stale, we affirm Lackey’s convictions.
Factual and Procedural Background
{¶2} Based on an anonymous complaint of heavy traffic and weapons at
Lackey’s residence, officers began surveillance of Lackey’s residence. During the
course of their surveillance, officers observed the odor of marijuana emanating from
Lackey’s residence. They also observed Lackey conducting a “dead drop,” which
entailed Lackey placing a clear plastic baggie containing an unknown substance in the
bed of a truck.
{¶3} Then, over the course of a month, the officers conducted three trash
pulls from Lackey’s residence. (A trash pull involves searching items placed in a
garbage bin at the curb for pickup.) The first two trash pulls took place on December
1 and 8, 2021. Among other things the officers recovered during the first two trash
pulls were torn off baggies, vacuum sealed bags with the odor of marijuana, shipping
labels, and small glass containers with hash residue. Officers also conducted a third
trash pull a few days later from which they recovered a vacuum sealed bag roll, three
empty THC containers with marijuana residue inside, two empty packs of rolling
papers, and two empty packs of THC gummies.
{¶4} Based on these three trash pulls and the preceding investigation of
Lackey’s residence, the officers then submitted an affidavit for a search warrant to
search Lackey’s house. The affidavit was submitted on December 16, 2021, less than
2 OHIO FIRST DISTRICT COURT OF APPEALS
48 hours after the third trash pull. Based on the information contained in the affidavit,
the trial court granted the application and issued the warrant.
{¶5} After the officers executed the search warrant, Lackey was indicted for
trafficking in and possessing marijuana, trafficking in and possessing hashish, and
having a weapon under a disability. Lackey moved to suppress the evidence seized
from the search of his residence, arguing that the search was based on an affidavit that
lacked probable cause and that the affidavit was based on stale information.
{¶6} After hearing arguments on Lackey’s motion to suppress, the trial court
denied the motion, finding that the facts set forth in the affidavit accompanying the
search warrant supported a finding of probable cause. Subsequently, Lackey withdrew
his not guilty pleas and entered no-contest pleas as charged. The trial court placed
Lackey on community control after holding a sentencing hearing.
{¶7} Lackey now appeals.
Standard of Review
{¶8} This court reviews a trial court’s decision as to a motion to suppress de
novo. State v. Thyot, 2018-Ohio-644, 105 N.E.3d 1260, ¶ 17 (1st Dist.). “We must
accept the trial court’s findings of fact as true if competent, credible evidence supports
them. But we must independently determine whether the facts satisfy the applicable
legal standard.” Id.
Probable Cause
{¶9} In his sole assignment of error, Lackey argues that the trial court erred
in denying his motion to suppress. And in the first issue for review under this
assignment of error, Lackey asserts that the affidavit in support of the search warrant
lacked probable cause.
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} In State v. German, we explained an appellate court’s consideration in
reviewing a trial court’s decision as to a motion to suppress:
In determining whether a search warrant was adequately supported by
probable cause, the reviewing court’s duty is merely to ensure that the
issuing magistrate or judge had a substantial basis for concluding that
probable cause existed. Neither a trial court nor an appellate court
should substitute its judgment for the magistrate’s by conducting a de
novo review of whether the affidavit contained probable cause. This
standard of review grants a great deal of deference to the issuing
magistrate.
To establish probable cause to issue a search warrant, an affidavit must
contain information to allow a magistrate to draw the conclusion that
evidence is likely to be found at the place to be searched. And probable
cause exists when a reasonably prudent person would believe that there
is a fair probability that the place to be searched contains evidence of a
crime.
(Footnotes omitted.) State v. German, 1st Dist. Hamilton No. C-040263, 2005-Ohio-
527, ¶ 12-13.
{¶11} Here, the affidavit established that contraband or evidence of a crime
would likely be found at Lackey’s residence. According to the affidavit, officers
observed Lackey conducting a “dead drop” and the odor of marijuana emanating from
his residence. Further, the affidavit detailed what the officers recovered from three
trash pulls of Lackey’s residence, including materials commonly used by marijuana
traffickers. Though Lackey contends that most of the items recovered were just
4 OHIO FIRST DISTRICT COURT OF APPEALS
evidence of personal drug use, the affidavit contained information connecting the
items to marijuana trafficking.
{¶12} Therefore, considering the facts set forth in the affidavit as a whole, as
we are bound to do at this stage of the proceedings, we hold that there was a fair
probability that contraband or evidence of marijuana trafficking would be found at
Lackey’s residence. See German at ¶ 13. Accordingly, we uphold the trial court’s
finding of probable cause based on the affidavit.
Staleness
{¶13} In his second issue for review, Lackey argues that the information in the
search warrant was stale and therefore did not give rise to probable cause.
{¶14} Though the state argued Lackey waived his staleness argument by not
asserting it in his motion to suppress, Lackey argued staleness at the suppression
hearing. We therefore do not consider the argument waived.
{¶15} But we do not find any merit in this argument. We described when
information in an affidavit has gone stale in German:
Because probable cause to search is concerned with facts relating to a
presently existing condition, a magistrate or judge must consider
whether the information supporting the issuance of a warrant has gone
stale. Therefore, the law of search and seizure requires that an affidavit
for a search warrant present timely information.
No arbitrary time limit dictates when information becomes stale. The
test is whether the facts justify the conclusion that certain contraband
remains on the premises to be searched.
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[Cite as State v. Lackey, 2023-Ohio-3720.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230025 TRIAL NO. B-2106423 Plaintiff-Appellee, : O P I N I O N. vs. :
NORMAN LACKEY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 13, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Jackson Law Office, LLC, and Kory A. Jackson, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Judge.
{¶1} Defendant-appellant Norman Lackey appeals his convictions for
various drug and weapons offenses. Because the search warrant for his residence was
supported by probable cause and the information in the affidavit submitted to obtain
the search warrant was not stale, we affirm Lackey’s convictions.
Factual and Procedural Background
{¶2} Based on an anonymous complaint of heavy traffic and weapons at
Lackey’s residence, officers began surveillance of Lackey’s residence. During the
course of their surveillance, officers observed the odor of marijuana emanating from
Lackey’s residence. They also observed Lackey conducting a “dead drop,” which
entailed Lackey placing a clear plastic baggie containing an unknown substance in the
bed of a truck.
{¶3} Then, over the course of a month, the officers conducted three trash
pulls from Lackey’s residence. (A trash pull involves searching items placed in a
garbage bin at the curb for pickup.) The first two trash pulls took place on December
1 and 8, 2021. Among other things the officers recovered during the first two trash
pulls were torn off baggies, vacuum sealed bags with the odor of marijuana, shipping
labels, and small glass containers with hash residue. Officers also conducted a third
trash pull a few days later from which they recovered a vacuum sealed bag roll, three
empty THC containers with marijuana residue inside, two empty packs of rolling
papers, and two empty packs of THC gummies.
{¶4} Based on these three trash pulls and the preceding investigation of
Lackey’s residence, the officers then submitted an affidavit for a search warrant to
search Lackey’s house. The affidavit was submitted on December 16, 2021, less than
2 OHIO FIRST DISTRICT COURT OF APPEALS
48 hours after the third trash pull. Based on the information contained in the affidavit,
the trial court granted the application and issued the warrant.
{¶5} After the officers executed the search warrant, Lackey was indicted for
trafficking in and possessing marijuana, trafficking in and possessing hashish, and
having a weapon under a disability. Lackey moved to suppress the evidence seized
from the search of his residence, arguing that the search was based on an affidavit that
lacked probable cause and that the affidavit was based on stale information.
{¶6} After hearing arguments on Lackey’s motion to suppress, the trial court
denied the motion, finding that the facts set forth in the affidavit accompanying the
search warrant supported a finding of probable cause. Subsequently, Lackey withdrew
his not guilty pleas and entered no-contest pleas as charged. The trial court placed
Lackey on community control after holding a sentencing hearing.
{¶7} Lackey now appeals.
Standard of Review
{¶8} This court reviews a trial court’s decision as to a motion to suppress de
novo. State v. Thyot, 2018-Ohio-644, 105 N.E.3d 1260, ¶ 17 (1st Dist.). “We must
accept the trial court’s findings of fact as true if competent, credible evidence supports
them. But we must independently determine whether the facts satisfy the applicable
legal standard.” Id.
Probable Cause
{¶9} In his sole assignment of error, Lackey argues that the trial court erred
in denying his motion to suppress. And in the first issue for review under this
assignment of error, Lackey asserts that the affidavit in support of the search warrant
lacked probable cause.
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} In State v. German, we explained an appellate court’s consideration in
reviewing a trial court’s decision as to a motion to suppress:
In determining whether a search warrant was adequately supported by
probable cause, the reviewing court’s duty is merely to ensure that the
issuing magistrate or judge had a substantial basis for concluding that
probable cause existed. Neither a trial court nor an appellate court
should substitute its judgment for the magistrate’s by conducting a de
novo review of whether the affidavit contained probable cause. This
standard of review grants a great deal of deference to the issuing
magistrate.
To establish probable cause to issue a search warrant, an affidavit must
contain information to allow a magistrate to draw the conclusion that
evidence is likely to be found at the place to be searched. And probable
cause exists when a reasonably prudent person would believe that there
is a fair probability that the place to be searched contains evidence of a
crime.
(Footnotes omitted.) State v. German, 1st Dist. Hamilton No. C-040263, 2005-Ohio-
527, ¶ 12-13.
{¶11} Here, the affidavit established that contraband or evidence of a crime
would likely be found at Lackey’s residence. According to the affidavit, officers
observed Lackey conducting a “dead drop” and the odor of marijuana emanating from
his residence. Further, the affidavit detailed what the officers recovered from three
trash pulls of Lackey’s residence, including materials commonly used by marijuana
traffickers. Though Lackey contends that most of the items recovered were just
4 OHIO FIRST DISTRICT COURT OF APPEALS
evidence of personal drug use, the affidavit contained information connecting the
items to marijuana trafficking.
{¶12} Therefore, considering the facts set forth in the affidavit as a whole, as
we are bound to do at this stage of the proceedings, we hold that there was a fair
probability that contraband or evidence of marijuana trafficking would be found at
Lackey’s residence. See German at ¶ 13. Accordingly, we uphold the trial court’s
finding of probable cause based on the affidavit.
Staleness
{¶13} In his second issue for review, Lackey argues that the information in the
search warrant was stale and therefore did not give rise to probable cause.
{¶14} Though the state argued Lackey waived his staleness argument by not
asserting it in his motion to suppress, Lackey argued staleness at the suppression
hearing. We therefore do not consider the argument waived.
{¶15} But we do not find any merit in this argument. We described when
information in an affidavit has gone stale in German:
Because probable cause to search is concerned with facts relating to a
presently existing condition, a magistrate or judge must consider
whether the information supporting the issuance of a warrant has gone
stale. Therefore, the law of search and seizure requires that an affidavit
for a search warrant present timely information.
No arbitrary time limit dictates when information becomes stale. The
test is whether the facts justify the conclusion that certain contraband
remains on the premises to be searched.
5 OHIO FIRST DISTRICT COURT OF APPEALS
(Footnotes omitted.) German, 1st Dist. Hamilton No. C-040263, 2005-Ohio-527, at
¶ 14-15. For example, “[t]he observation of a half-smoked marijuana cigarette in an
ashtray at a cocktail party may well be stale the day after the cleaning lady has been
in,” but “the observation of the burial of a corpse in a cellar may not be stale three
decades later.” Id. at ¶ 17.
{¶16} The first, second, and third trash pulls occurred 15 days, eight days, and
48 hours before the officers applied for a warrant, respectively. Lackey argues the
information contained in the affidavit occurred nearly a week before the warrant was
served and was therefore stale. But as the state noted during the suppression hearing,
trash is typically only picked up once a week, and it would have been impossible to pull
trash more than once a week. Moreover, the fact that officers found evidence
connected with drug activity on three separate instances over a 15-day period
preceding the search heightened, not diminished, the likelihood that contraband
remained on the premises. The regularity with which the items continued to be found
in Lackey’s trash undercut any concern that the passage of time might have rendered
the information in the affidavit stale.
{¶17} Lackey also contends that a four-day delay in executing the search
warrant contributed to its potential staleness. But again, the fact that Lackey’s trash
contained evidence connected to drug activity on three separate occasions spaced 13
days apart did not make it likely that those four days would change the calculus. We
therefore hold that the affidavit was not based on stale information.
{¶18} Accordingly, we overrule Lackey’s assignment of error and affirm his
convictions.
Judgment affirmed.
6 OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, P.J., and BOCK, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.