State v. Russell

2012 Ohio 6050

Opinion

[Cite as State v. Russell, 2012-Ohio-6050.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 25055

v. : T.C. NO. 11CR4109

DUSTIN E. RUSSELL : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 21st day of December , 2012.

CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

ANTONY A. ABBOUD, Atty. Reg. No. 0078151, 130 W. Second Street, Suite 1818, Dayton, Ohio 45402 Attorney for Defendant-Appellant

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Dustin Russell, [Cite as State v. Russell, 2012-Ohio-6050.] filed February 27, 2012. Russell appeals from the February 22, 2012 judgment entry of

conviction, following a no contest plea, to one count of possession of cocaine (20 grams but

less than 27 grams), in violation of R.C. 2925.11(A), a felony of the second degree. Russell

was sentenced to a three year prison term. We hereby affirm the judgment of the trial court.

{¶ 2} The record reflects that Russell, after initially pleading not guilty, filed a

motion to suppress, which the court overruled after a hearing. At the hearing, the court

heard the testimony of Detective Brian Dedrick of the Dayton Police Department. Dedrick

testified that he has been employed with the Dayton Police Department since 2002, and that

in August, 2010, he was assigned to the Narcotics Bureau. According to Dedrick, he

initiated an investigation on November 7, 2011, after receiving information from a

confidential informant that crack cocaine was being sold at a residence at 1205 Windsor

Avenue, Dayton, Ohio. Dedrick stated that he obtained a search warrant for the residence

on December 1, 2011. Russell was listed as a suspect in the warrant.

{¶ 3} Dedrick identified a copy of the warrant and testified that it was served at the

residence on December 5, 2011. Dedrick stated that he responded to the address after the

warrant had been served, at which time both the residence and Russell were secured.

Dedrick stated that his “role was to conduct interviews and complete the investigation.”

Dedrick testified that he escorted Russell, who was in handcuffs in a chair in the living

room, to an enclosed front porch. According to Dedrick, he introduced himself to Russell,

advised him that he was identified as a suspect in the search warrant, and read him his

Miranda rights “verbatim” from a “rights card.” Dedrick stated that Russell indicated his

understanding of each individual right as Dedrick read them to him. Dedrick stated that

Russell agreed to speak to him without an attorney. 3

{¶ 4} According to Dedrick’s testimony, Russell did not have trouble standing or

walking and was not slurring his words. Dedrick stated that Russell “appeared normal” and

did not appear to be under the influence of alcohol or drugs. Dedrick testified that Russell

did not appear to suffer from any sort of mental disorder, that he did not indicate that he did

not understand what was going on, and that he did not indicate to Dedrick that he did not

want to talk to him.

{¶ 5} Dedrick further testified that there was a break in the conversation,

during which time Dedrick brought Russell back inside the residence. After Russell was

seated in the living room, Dedrick stated that Russell indicated that he no longer wanted to

speak to him without an attorney. From that point in time, Dedrick testified that he did not

ask Russell any further questions. Dedrick stated that he did not make any threats or

promises to Russell.

{¶ 6} On cross-examination, Dedrick stated that there was an intervening weekend

between the issuance of the warrant and its execution. Dedrick stated that the warrant was

executed by a “seven-person entry team,” and that four additional officers were stationed on

the perimeter of the residence. Dedrick stated that he did not request that one of the other

officers witness his interview of Russell or record their conversation. Dedrick stated that he

did not complete a pre-interview form but read from his “rights card,” and that he has “never

gone through a form like that during a search warrant investigation. I just go over their

rights with the card that I keep with me.”

{¶ 7} Russell testified that on December 5, 2011, he was watching Monday Night

Football at 1205 Windsor Avenue when Dayton Police Officers “kicked the door in.” 4

Russell stated that he went to the floor, and “when they came in they stepped on my shoulder

and twinked (sic) my arms behind my back.” Russell stated that he was placed in handcuffs

in a chair, where he remained for 20-25 minutes. Russell stated that Dedrick “lift me up by

the chair and - - and we got to walkin’ towards the porch.” According to Russell, he has

“been arrested plenty of times.” Russell stated that Dedrick did not advise him of his rights.

Specifically, Russell stated that Dedrick did not mention he had a right to an attorney.

{¶ 8} On cross-examination, Russell stated that he has “three or four” felony

convictions, and that as a result thereof, he is aware that he has certain constitutional rights.

When asked why he spoke to Dedrick, if Dedrick failed to advise him of his Miranda rights,

Russell responded, “he just asked me like as far as what they say what they found in the

house (sic). And I asked him like, ‘What dope?’” Russell testified that he did not know

why the officers were there, and that he asked Dedrick, “‘[W]hy my man want a search

warrant?’” Russell stated that Dedrick never threatened him, or promised him “a deal” in

exchange for his cooperation. When asked if Dedrick grabbed him to lead him to the

porch, Russell stated that Dedrick helped him “up out of the chair to go to the porch,” and

that Russell “didn’t think I was forced, but I mean, I don’t think I had a choice really.”

Russell stated that Dedrick did not intimidate him.

{¶ 9} In overruling Russell’s motion to suppress from the bench, the trial court

indicated that it found Dedrick’s testimony to be credible, and it incorporated that testimony

into the decision as the court’s factual findings relating to Russell’s statements. The court

further determined that Russell’s testimony lacked credibility.

{¶ 10} Regarding the search warrant, the court determined, “upon review of 5

Detective Dedrick’s affidavit as a whole that the search warrant for 1205 Windsor Avenue

was issued based upon probable cause that crack cocaine and items associated with the sale

of crack cocaine would in probability be found within 1205 Windsor Avenue.” The court

acknowledged that “there is some ambiguity created by the affidavit stating that before the

confidential informant went into 1205 Windsor Avenue to make a controlled purchase, he

was checked for drugs and money with none being found. And that after the [confidential

informant] had completed the controlled buy, [he] was again searched for drugs and money,”

with neither being found. The court determined, however, that when the affidavit is read

in its entirety, it is clear that “before each controlled buy the CI was searched to ensure he

had no drugs on him and no money other than the money provided to him to perform the

controlled buy. And that after each controlled buy, the CI was once again searched to

ensure he had no money or any drugs other than that which he purchased from 1205 Windsor

Avenue.” The court noted that the affidavit further provides that the C.I. identified a

photograph of Russell.

{¶ 11} Regarding Dedrick’s statements, the court concluded that Dedrick advised

Russell of his rights and that Russell waived those rights prior to any interrogation. Further,

the court noted, “there is nothing in the record to suggest that Mr. Russell, by virtue of a

mental disease, intoxication, or otherwise, was not able to make a knowing waiver of his

[Miranda] rights.” The court concluded that Russell’s waiver was voluntary, “because there

is no evidence that Mr. Russell’s waiver was the product of any force, threat of force, false

promises, or anything else that acted to overcome Mr. Russell’s will.”

{¶ 12} Russell asserts two assignments of error herein. His first assignment of 6

error is as follows:

“THE TRIAL COURT ERRED BY DENYING MR. RUSSELL’S MOTION TO

SUPPRESS AND MAKING A FINDING THAT THE SEARCH WARRANT WAS

BASED ON PROBABLE CAUSE.”

{¶ 13} According to Russell, the “affidavit as presented to the magistrate reflects

that the control[led] buy[s] did not yield any drugs. The trial court cannot go outside the

four corners of the search warrant and correct the alleged ‘grammatical and sentence

structure’ errors of the affidavit.”

{¶ 14} Regarding the sufficiency of probable cause, this Court has previously

determined as follows:

In determining the sufficiency of probable cause in an affidavit

submitted in support 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, 238-239, 103 S.Ct.

2317, 2332, 76 L.Ed.2d 527 followed.) State v. Lane, 2d Dist. Greene No.

07CA0014, 2008-Ohio-1605, ¶ 4.

{¶ 15} This Court has further noted, “‘[I]t is clear that “only the probability, and not

a prima facie showing, of criminal activity is the standard of probable cause.’” * * * ‘To

establish probable cause to search a home, the facts must be sufficient to justify a conclusion 7

that the property that is the subject of the search is probably on the premises to search.’”

State v. Mays, 2d Dist. Montgomery No. 23986, 2011-Ohio-2684, ¶ 14. Also, the “‘nexus

between the items sought and the place to be searched depends upon all of the circumstances

of each individual case, including the type of crime and the nature of the evidence.’ * * *.”

Id.

{¶ 16} As this Court further noted in Mays:

“An affidavit in support of a search warrant must present timely information and

include facts so closely related to the time of issuing the warrant as to justify a finding of

probable cause at that time. * * * No arbitrary time limit dictates when information becomes

‘stale.’ * * * The test is whether the alleged facts justify the conclusion that certain

contraband remains on the premises to be searched. * * * .” Id., ¶ 21.

{¶ 17} As this Court additionally noted in Lane:

“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 8

or marginal cases in this area should be resolved in favor of upholding the

warrant. (Illinois v. Gates [1983], 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d

527 followed.)” Lane, ¶ 5.

{¶ 18} We agree with the trial court’s conclusion that Dedrick’s affidavit, when

considered in its entirety, justifies the conclusion that there was a fair probability that crack

cocaine would be found within 1205 Windsor Avenue. Dedrick’s affidavit provides in

relevant part in Paragraph B:

On or about November 7, 2011, I received information from a

confidential informant that crack cocaine was being sold from

1205 Windsor Avenue by a black male named Dustin. This

C.I. has provided information in the past, which has been

proven to be true and accurate through independent

investigation and had led to the issuance of search warrants

and the recovery of illegal drugs. On or about November 7, 2011, Detective

Jason Barnes and I met with the same C.I. for the purpose of attempting a

controlled buy of illegal drugs from 1205 Windsor Avenue. Prior to the buy

the C.I. was checked for drugs and money and none were found. The

informant was then given a sum of money from the Dayton Police Buy Fund

and directed to the front door of 1205 Windsor Avenue. Detective Barnes and

I took a position of surveillance to the south and observed the C.I. enter an

enclosed porch at the front of 1205 Windsor Avenue. Approximately three

minutes later we observed the C.I. exit the front porch door and return to our 9

unmarked vehicle. The C.I. was again checked for drugs and money and

none were found. The C.I. explained to us that [he] walked to 1205 Windsor

Avenue and entered the enclosed front porch. The C.I. continued to a front

entrance door and knocked. The door opened and the C.I. was let inside by

Suspect # 1. Suspect # 1 is listed and further described in paragraph III, A, 1

of the Search Warrant. Suspect #1 continued to the rear of the residence and

returned with a piece of crack cocaine. The C.I. purchased crack cocaine

from Suspect #1, exited the residence and returned to our vehicle.

(Emphasis added).

Paragraph C of the affidavit provides that Dedrick field tested the substance purchased by

the C.I., and that the results were positive for crack cocaine.

{¶ 19} Paragraphs D and E describe controlled buys conducted by the confidential

informant that occurred on November 11, 2011, and November 28, 2011. Each of those

paragraphs contains language identical to that italicized in Paragraph B above. Paragraphs

D and E also both conclude with the following sentence: “The C.I. purchased crack cocaine

from Suspect #1[,] exited the front door and returned to our unmarked vehicle.” The

affidavit indicates that field tests of the substances at issue in Paragraphs D and E were field

tested and the results were positive for crack cocaine.

{¶ 20} We agree with the trial court that the italicized language above (which is the

focus of Russell’s assigned error), when read in isolation, appears to indicate no drugs were

purchased during the course of the controlled buys. However, when the affidavit is read in

its entirety, it is clear that the confidential informant purchased crack cocaine on three 10

occasions at 1205 Windsor Avenue, and that the search warrant was accordingly issued upon

probable cause to conclude that crack cocaine would be found at that address.

Accordingly, Russell’s first assigned error is overruled.

{¶ 21} Russell’s second assigned error is as follows:

“THE TRIAL COURT ERRED BY DENYING MR. BARRON’S [sic] MOTION

TO SUPPRESS STATEMENTS.”

{¶ 22} According to Russell, Dedrick did not advise him of his Miranda rights.

{¶ 23} As this Court has previously noted:

“Appellate courts give great deference to the factual findings of the

trier of facts. (Internal citations omitted) . At a suppression hearing, the trial

court serves as the trier of fact, and must judge the credibility of witnesses

and the weight of the evidence. (Internal citations omitted). The trial court is

in the best position to resolve questions of fact and evaluate witness

credibility. (Internal citations omitted). In reviewing a trial court’s decision

on a motion to suppress, an appellate court accepts the trial court’s factual

findings, relies on the trial court’s ability to assess the credibility of

witnesses, and independently determines whether the trial court applied the

proper legal standard to the facts as found. (Internal citations omitted). An

appellate court is bound to accept the trial court’s factual findings as long as

they are supported by competent, credible evidence.” State v. Hurt,

Montgomery App. No. 21009, 2006-Ohio-990.

State v. Purser, 2d Dist. Greene No. 2006 CA 14, 2007-Ohio-192, ¶ 11. 11

{¶ 24} We accord great deference to the trial court’s factual findings, and we defer

to the trial court’s assessment of credibility. The trial court expressly indicated that it

credited Dedrick’s testimony and did not credit the testimony of Russell, and the court

adopted Dedrick’s testimony regarding Russell’s statements as its own factual findings. In

other words, Dedrick properly advised Russell of his Miranda rights prior to interviewing

him, and Russell understood those rights and chose to speak to Dedrick. Russell’s second

assigned error is overruled, and the judgment of the trial court is affirmed.

GRADY, P.J. and FROELICH, J., concur.

Copies mailed to:

Carley J. Ingram Antony A. Abboud Hon. Michael L. Tucker