State v. Ralston

2011 Ohio 3552

• Court: Ohio Court of Appeals
• Decided: July 7, 2011
• Docket: 10CA6
• Status: Published

Opinion

[Cite as State v. Ralston, 2011-Ohio-3552.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 10CA6 : vs. : Released: July 7, 2011 : JOHN D. RALSTON, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. :

APPEARANCES:

James T. Boulger, Chillicothe, Ohio, for Appellant.

James B. Grandey, Highland County Prosecutor, and David M. Henry, Highland County Assistant Prosecutor, Hillsboro, Ohio, for Appellee.

McFarland, J.:

{¶1} Appellant John D. Ralston appeals his conviction in the Highland

County Court of Common Pleas where the trial court found him guilty of

trafficking in drugs, a felony of the fifth degree in violation of R.C. 2925.03(A)(2),

and possession of drugs, a felony of the fifth degree in violation of R.C.

2925.11(A). On appeal, Appellant raises a single assignment of error, arguing the

trial court erred in finding that the allegations contained in the affidavit in support

of the search warrant established probable cause. Having reviewed the affidavit, Highland App. No. 10CA6 2

we find no error regarding the trial court’s holding and overrule Appellant’s

assignment of error. As such, we affirm the judgment of the trial court.

FACTS

{¶2} Detective Sergeant Richard Warner, Jr. (“Det. Warner”) of the

Highland County Sheriff’s Office attached an affidavit to a request for a search

warrant that sought permission to search the residences at 208 East Main Street and

209 East Main Street in Leesburg, Ohio. Det. Warner averred, in relevant part:

{¶3} “On October 1, 2009, the US 23 Pipeline Major Crimes Taskforce

based out of the Ross County Sheriff’s Office received information from a source

known to be reliable. The source gave information that [Appellant] has been

involved in marijuana cultivation and trafficking. The source advised that

[Appellant] has a stash house across the street from his address of 208 East Main

Street, Leesburg, OH 45135. Inside of his residence in the upstairs was reported to

be a large amount of marijuana that had just recently been harvested and was being

dried. The source was advised by another party that this was taking place and the

person showed the source a bud from the marijuana taken from the stash house.

***

{¶4} “The Leesburg Police Department within the past two weeks received

information that [Appellant] between 2:00 a.m. and 4:00 a.m., has traffic in and out

of 209 East Main Street. Highland App. No. 10CA6 3

{¶5} “On May 8, 2009, the Leesburg Police Department executed a search

warrant at 208 East Main Street, Leesburg, this being the residence of [Appellant].

Upon conducting a search, several items were seized as evidence, including cash,

six black tar heroin capsuels, six white heroin capsuels, and several other types of

pills (all controlled substances). * * * [S]everal items related to the cultivation of

marijuana were discovered including grow lights, exhaust fans (two), four heat

mats, an automatic watering system, digital timers, and a hydroponics table.”

{¶6} Det. Warner also averred that Appellant had two drug-related arrests,

one of which resulted in a conviction for trafficking in marijuana. Furthermore,

based upon Det. Warner’s fifteen years of law enforcement experience and training

in narcotics investigation, it is common for those engaged in illegal narcotics

activity to hide narcotics in a secondary location or “stash house.” Det. Warner

had corroborated that Appellant resided at the 208 residence and was in the process

of purchasing the 209 residence.

{¶7} Based upon the affidavit, a judge issued the search warrant and a

search of the two residences yielded contraband. Appellant moved to suppress this

evidence, arguing that the affidavit did not provide a substantial basis for finding

probable cause. The trial court denied Appellant’s motion, and Appellant then

pled no contest to the charges against him. The trial court convicted Appellant of

trafficking in drugs and possession of drugs, which he now appeals. Highland App. No. 10CA6 4

ASSIGNMENT OF ERROR

I. “THE TRIAL COURT ERRED IN FINDING THAT THE ALLEGATIONS CONTAINED IN THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT ESTABLISHED A FAIR PROBAILITY THAT EVIDENCE OF A CRIME WOULD BE LOCATED AT THE SUBJECT PROPERTY.”

{¶8} The Fourth Amendment to the United States Constitution, as applied to

the states through the Fourteenth Amendment, provides that “[t]he right of the

people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized.” Article

I, Section 14 of the Ohio Constitution contains a nearly identical provision.

{¶9} “‘A neutral and detached magistrate may issue a search warrant only

upon the finding of probable cause.’” State v. Westbrook, 4th Dist. No.

09CA3277, 2010-Ohio-2692, at ¶18, quoting State v. Gilbert, 4th Dist. No.

06CA3055, 2007-Ohio-2717, at ¶ 13, citing United States v. Leon (1984), 468 U.S.

897, 914-915, 104 S.Ct. 3405, 82 L.Ed.2d 677 and Crim.R. 41(C). A warrant shall

issue “only on an affidavit or affidavits sworn to before a judge of a court of record

* * * establishing the grounds for issuing the warrant.” Crim.R. 41(C).1

{¶10} Generally, “‘[a]ppellate review of a motion to suppress presents a

mixed question of law and fact. When considering a motion to suppress, the trial

1 We apply the prior version of Crim.R. 41 that was in effect when the magistrate issued the search warrant. Highland App. No. 10CA6 5

court assumes the role of trier of fact and is therefore in the best position to resolve

factual questions and evaluate the credibility of witnesses.’” State v. Roberts, 110

Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, at ¶100, quoting State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶8, citing State

v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. “Accordingly, we defer

to the trial court’s findings of fact if they are supported by competent, credible

evidence.” State v. Westbrook, 4th Dist. No. 09CA3277, 2010-Ohio-2692, at ¶16,

citing State v. Landrum (2000), 137 Ohio App.3d 718, 722, 739 N.E.2d 1159.

“Accepting those facts as true, we must independently determine whether the trial

court reached the correct legal conclusion in analyzing the facts of the case.”

Westbrook at ¶16, citing Roberts at ¶100, citing Burnside at ¶8.

{¶11} When considering the issuance of a search warrant, “[t]he 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.” Illinois v. Gates (1983), 462 U.S. 213, 238, 103 S.Ct. 2317, 76

L.Ed.2d 527. Considering the totality of the circumstances, “so long as the

magistrate had a ‘substantial basis for ... conclud[ing]’ that a search would uncover

evidence of wrongdoing, the Fourth Amendment requires no more.” Gates at 236, Highland App. No. 10CA6 6

quoting Jones v. United States (1960), 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d

697. Accordingly, “the duty of a reviewing court is simply to ensure that the

magistrate had a ‘substantial basis for ... conclud[ing]’ that probable cause

existed.” Gates, at 238-239, quoting Jones at 271. “Neither the trial court nor an

appellate court should substitute its judgment for that of the magistrate.”

Westbrook at ¶20, citing State v. George (1989), 45 Ohio St.3d 325, 544 N.E.2d

640, at paragraph two of the syllabus (following Gates). “The reviewing court

‘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.’” Id. “[T]his standard of review is more deferential than

that review we engage in other contexts involving a motion to suppress.” State v.

Goddard (Oct. 2, 1998), 4th Dist. No. 97CA23, at fn.2, citing State v. Klein (1991),

73 Ohio App.3d 486, 488, 597 N.E.2d 1141.

{¶12} “To make a valid finding of probable cause, a magistrate must be

informed of: (1) the basis of the informant’s knowledge; and (2) sufficient facts to

establish either the informant’s veracity or the reliability of the informant’s

information. State v. Walker, 4th Dist. No. 08CA3030, 2009-Ohio-1903, at ¶36,

citing Aguilar v. Texas (1964), 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723.

See, also, Crim.R. 41(C). “‘However, an affidavit lacking in these areas is not

automatically insufficient to procure the issuance of a search warrant.’” Westbrook Highland App. No. 10CA6 7

at ¶24, quoting Goddard. “These areas should instead be viewed as ‘closely

intertwined issues that may usefully illuminate the commonsense, practical

question whether there is “probable cause” to believe that contraband or evidence

is located in a particular place.’” Id. “Therefore, a deficiency in one area may be

overcome by ‘other indicia of reliability.’” Id.

{¶13} One such indicium of reliability is an “explicit and detailed

description of alleged wrongdoing.” Goddard. A tip that describes the accused’s

criminal activity in sufficient detail permits the magistrate to know that he is

“relying on something more substantial than a casual rumor circulating in the

underworld or an accusation based merely upon an individual’s general

reputation.” Goddard.

{¶14} Another indicium of reliability is corroboration of the anonymous

informant’s tip. “Corroboration lends credence to the remaining unverified portion

of the informant’s story by demonstrating that the informant has, to the extent

tested, spoken truthfully.” Goddard, citing LaFave, Search and Seizure (1996)

157, Section 3.3(e). “Furthermore, Gates explicitly reject[ed] the position that

corroboration of innocent activity is not sufficient, noting that seemingly innocent

activity can become suspicious in light of a prior tip.” Id.

{¶15} Appellant’s argument that Det. Warner did not directly receive the

information from the informant is not problematic. First, Crim.R. 41(C) explicitly Highland App. No. 10CA6 8

permits the use of hearsay. Multiple layers of hearsay do not complicate the matter

either. “The fact that an affiant’s knowledge may be the result of double or

multiple levels of hearsay does not, per se, invalidate the resulting search warrant.”

(Internal citations omitted). State v. Richardson, 4th Dist. No. 08CA3022, 2009-

Ohio-923, at ¶10, quoting State v. Prater, 2d Dist. No. CA2001-12-114, 2002-

Ohio-4487, at ¶7. Second, “a law enforcement officer may rely upon information

supplied to him by a fellow officer in an affidavit to obtain a search warrant.”

State v. Dunham, 4th Dist. No. 04CA2931, 2005-Ohio-3642, at ¶24. Thus, the fact

that Det. Warner received his information from another officer, not the informant

himself, does not necessarily inure to Appellant’s benefit.

{¶16} Regarding the alleged deficiencies with the affidavit, Appellant

focuses on the fact that the informant did not have firsthand knowledge of the

illegal activity allegedly occurring, and the source of the relevant information was

an unknown third party. This is true however after outlining the criminal activity

the informant believed was occurring, the affidavit provided that “[t]he [informant]

was advised by another party that this was taking place.” Essentially, the source of

any information relating to alleged wrongdoing was the unknown third party.

{¶17} As Appellant correctly notes, there are no facts in the affidavit upon

which the magistrate could have found a substantial basis for believing that there

was a factual basis for the information the third party furnished to the informant. Highland App. No. 10CA6 9

Nothing in the affidavit reveals how the third party came to know that Appellant

was trafficking in or cultivating marijuana. The affidavit did not contain an

“explicit and detailed description of the alleged wrongdoing” so the magistrate

could distinguish the third party’s claim from idle rumor. It was not stated that the

third party had personally obtained from the stash house the marijuana he

displayed to the informant. It was not stated that the third party had ever been

inside of the stash house and observed any wrongdoing, giving him firsthand

knowledge.

{¶18} Additionally, this deficiency was balanced by law enforcement

officers corroborating much the third party’s statements, and, as noted,

corroboration is an indicium of reliability. Officers independently established that

Appellant resided at 208 East Main Street and had entered into a land contract to

purchase 209 East Main Street – the alleged stash house. Det. Warner’s fifteen

years of experience and narcotics investigation training provided the insight that it

is common for those engaged in narcotics activity to hide either narcotics or money

in a secondary location. Det. Warner also knew that Appellant had been convicted

of marijuana trafficking in the past, and arrested on a drug-related charge on

another occasion. Just five months before requesting the search warrant, officers

had recovered numerous items related to marijuana cultivation from Appellant’s

residence. Finally, within the two weeks preceding the affidavit, law enforcement Highland App. No. 10CA6 10

had received information that there was traffic in and out of the 209 residence

between 2:00 a.m. and 4:00 a.m.

{¶19} Though law enforcement only corroborated innocent facts, this does

not negate their cumulative effect and contribution to the determination of probable

cause, especially in light of the third party’s allegations. Specifically, knowledge

of a prior arrest and conviction relating to drug trafficking is a “‘practical

consideration of everyday life’ upon which an officer or magistrate may properly

rely in assessing the reliability of an informant’s tip.” State v. Underwood, 4th

Dist. No. 03CA2930, 2005-Ohio-2309, at ¶43.

{¶20} Here, the magistrate had substantial facts from which he could find

that there was a fair probability that evidence of a crime would be found at

Appellant’s residences. Appellant was a convicted drug trafficker and only five

months prior to the affidavit, officers had recovered marijuana cultivation

equipment from Appellant’s residence. In Det. Warner’s experience and training,

persons engaged in illegal activity often kept drugs or money in a secondary

location; this made the allegation that Appellant was secreting the marijuana in a

house across the street from his residence more plausible. Appellant was indeed in

the process of purchasing the 209 residence, from which there was traffic in the

early morning hours. This activity becomes both noteworthy and suspicious when

considering Appellant’s history, the recent recovery of cultivation items from the Highland App. No. 10CA6 11

208 residence, and the tendency of those involved in drug trafficking to establish a

stash house.

{¶21} The suspicion surrounding Appellant and the 209 residence then

increases in light of the third party’s tip that Appellant was storing cultivated

marijuana in the 209 residence. Considering all of these facts together, there was a

substantial basis for the magistrate to believe that the affidavit established probable

cause to search Appellant’s residences.

{¶22} Therefore, having considered the affidavit and the totality of the

circumstances therein, and “keeping in mind the preference to be accorded to

warrants in doubtful or marginal cases,” we find there was a substantial basis for

the magistrate’s finding that probable cause existed to issue the search warrant.

Underwood at ¶44.

{¶23} Assuming arguendo we were to find that the issuing judge did not

have a substantial basis for concluding that probable cause existed based on Det.

Warner’s affidavit, we would still uphold the search based on the good faith

exception to the exclusionary rule. Pursuant to the exclusionary rule, “all evidence

obtained by searches and seizures in violation of the [United States] Constitution

is, by that same authority, inadmissible in a state court.” State v. Wilmoth (1986),

22 Ohio St.3d 251, 255, 490 N.E.2d 1236, quoting Mapp v. Ohio (1961), 367 U.S.

643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081. “[T]he objective of the exclusionary rule Highland App. No. 10CA6 12

[is] to deter willful, or at the very least negligent, police conduct which deprive[s]

a defendant of some right.” Wilmoth at 265. However, “the rule [is] useless when

the police act in good faith.” Id., referencing United States v. Leon (1984), 468

U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677. “In the ordinary case, an officer cannot

be expected to question the magistrate’s probable-cause determination or his

judgment that the form of the warrant is technically sufficient. ‘[O]nce the warrant

issues, there is literally nothing more the policeman can do in seeking to comply

with the law.’ Penalizing the officer for the magistrate’s error, rather than his own,

cannot logically contribute to the deterrence of Fourth Amendment violations.”

(Citation omitted) Leon at 921.

{¶24} Under the good faith exception to the exclusionary rule, a court may

not suppress evidence obtained by 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.” Wilmoth at paragraph one of the syllabus, citing

Leon at 923. However, suppression remains appropriate where the officer relied

on a warrant based on an affidavit “so lacking in indicia of probable cause as to

render official belief in its existence entirely unreasonable.” (Citations omitted.)

State v. George (1989), 45 Ohio St.3d 325, 331, 544 N.E.2d 640, quoting Leon at

923. See, also, State v. Johnson, 4th Dist. No. 08CA6, 2008-Ohio-5907, at ¶18-19. Highland App. No. 10CA6 13

{¶25} In this case, the affidavit was not so devoid of indicia of probable

cause so as to render Det. Warner’s belief in such unreasonable. An affidavit that

contains conclusory statements and nothing more specific is merely “bare bones”

and insufficient to support to a magistrate’s finding of probable cause. See Gates

at 239.

{¶26} We have already outlined the facts Det. Warner included in the

affidavit that formed the factual bases for his belief that there was marijuana in the

stash house. The affidavit was not merely conclusory and it was not “bare bones.”

It was not so deficient as to render official belief in probable cause unreasonable.

Accordingly, because Det. Warner and his brethren relied upon the search warrant

in good faith, the good faith exception would apply. Thus, even if we had found

the affidavit and subsequent search warrant to be invalid, we would still affirm the

trial court’s denial of Appellant’s motion to suppress.

{¶27} Accordingly, we find that the trial court was correct in denying

Appellant’s motion to suppress and we overrule Appellant’s sole assignment of

error.

JUDGMENT AFFIRMED. Highland App. No. 10CA6 14

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Highland County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Harsha, P.J. and Abele, J.: Concur in Judgment Only.

For the Court,

BY: _________________________ Matthew W. McFarland, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.