State v. Scott

2020 Ohio 5575

Opinion

[Cite as State v. Scott, 2020-Ohio-5575.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 9-20-05

v.

JEREMY SCOTT, OPINION

DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court Trial Court No. 19-CR-106

Judgment Affirmed

Date of Decision: December 7, 2020

APPEARANCES:

Ted Coulter for Appellant

Nathan R. Heiser for Appellee Case No. 9-20-05

PRESTON, J.

{¶1} Defendant-appellant, Jeremy Scott (“Scott”), appeals the January 21,

2020 judgment of sentence of the Marion County Court of Common Pleas. For the

reasons that follow, we affirm.

{¶2} On February 28, 2019, Deputy Jesse Allen (“Deputy Allen”) of the

Marion County Sheriff’s Office requested a warrant to use a thermal-imaging device

to scan a residence located at 552 Pearl Street, Marion, Ohio. In the affidavit

supporting his request for the search warrant, Deputy Allen stated that, based on

years of tips regarding Scott’s involvement in marijuana cultivation, a trash pull,

subpoenaed records of electricity usage at 552 Pearl Street, and other information,

he had probable cause to believe that Scott was running a marijuana growing

operation out of 552 Pearl Street and another residence, 354 Chestnut Street,

Marion, Ohio. Deputy Allen’s request for a search warrant was granted, and on the

night of March 1, 2019, 552 Pearl Street was scanned with a helicopter-mounted

thermal-imaging device. With the results of the thermal-imaging scan in hand, on

March 6, 2019, Deputy Allen requested warrants to search 552 Pearl Street and 354

Chestnut Street. The search warrants were granted, and on March 7, 2019, 552 Pearl

Street and 354 Chestnut Street were searched. The two searches yielded nearly 200

marijuana plants, significant quantities of harvested and processed marijuana, and

growing equipment, including 20 grow lights and 10 electrical ballasts.

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{¶3} On March 20, 2019, Scott was indicted on three counts: Count One of

illegal manufacture of drugs or cultivation of marihuana in violation of R.C.

2925.04(A), (C)(5)(d), a second-degree felony; Count Two of illegal manufacture

of drugs or cultivation of marihuana in violation of R.C. 2925.04(A), (C)(5)(d), a

third-degree felony; and Count Three of illegal manufacture of drugs or cultivation

of marihuana in violation of R.C. 2925.04(A), (C)(5)(e), a third-degree felony.1

(Doc. No. 2). On March 25, 2019, Scott appeared for arraignment and pleaded not

guilty to the counts of the indictment. (Doc. No. 6).

{¶4} On April 29, 2019, Scott filed a motion to suppress evidence. (Doc.

No. 14). On May 8, 2019, the State filed a memorandum in opposition to Scott’s

motion to suppress evidence. (Doc. No. 18). On August 23, 2019, Scott filed an

amended motion to suppress evidence. (Doc. No. 42).

{¶5} The hearing on Scott’s suppression motions was held over two separate

days in August and September 2019. (See Aug. 30, 2019 Tr. at 7); (Sept. 26, 2019

Tr. at 7). At the suppression hearing, Scott’s primary argument for suppression was

that in the affidavits used to secure the three search warrants, Deputy Allen

knowingly and intentionally included false or inaccurate statements or included

such statements with reckless disregard for their truth or inaccuracy. He maintained

1 Due to a clerical error, Count Three was originally charged as a second-degree felony. The trial court later granted the State’s motion to amend the indictment to reflect that Count Three should have been designated as a third-degree felony. (Doc. Nos. 80, 95).

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that when the allegedly false or inaccurate statements are removed from the

affidavits, the affidavits do not contain information sufficient to establish probable

cause for any of the searches. In addition, Scott claimed that the affidavits could

not support a probable-cause determination for any of the searches because much of

the information contained in the affidavits was stale by the time the warrants were

issued. On October 10, 2019, the trial court denied Scott’s suppression motions,

finding that Scott did not prove that Deputy Allen inserted false or misleading

statements in the search-warrant affidavits intentionally or with reckless disregard

for the truth. (Doc. No. 73).

{¶6} On December 3, 2019, pursuant to a negotiated plea agreement, Scott

pleaded no contest to Count One of the indictment. (Doc. No. 93). In exchange,

the State agreed to recommend dismissal of Counts Two and Three of the

indictment. (Id.). The trial court accepted Scott’s no contest plea and found him

guilty. (Doc. No. 100). In addition, the trial court dismissed Counts Two and Three

of the indictment. (Id.).

{¶7} On January 17, 2020, the trial court sentenced Scott to four years in

prison. (Id.). The trial court filed its judgment entry of sentence on January 21,

2020. (Id.).

{¶8} On February 19, 2020, Scott filed a notice of appeal. (Doc. No. 105).

He raises three assignments of error for our review, which we address together.

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Assignment of Error No. I

Trial court erred as a matter of law, abused its discretion and erred against the weight of the evidence when finding defendant-appellant failed to prove by a preponderance of evidence that false statements or inaccurate statements were made knowingly or with a reckless disregard for truth in order to acquire a search warrant to conduct a fly over thermal imaging test over a residence that the defendant-appellant was allegedly using at 552 Pearl Street, Marion, Ohio.

Assignment of Error No. II

Trial court erred as a matter of law, abused its discretion and erred against the weight of the evidence when finding defendant-appellant failed to prove by a preponderance of evidence that false statements or inaccurate statements were made knowingly or with a reckless disregard for truth in order to acquire a search warrant for a residence known as 354 Chestnut Street, Marion, Ohio that the defendant-appellant was living [sic].

Assignment of Error No. III

Trial court erred as a matter of law, abused its discretion and erred against the weight of the evidence when finding defendant- appellant failed to prove by a preponderance of evidence that false statements or inaccurate statements were made knowingly or with a reckless disregard for truth in order to acquire a search warrant a residence [sic] known as 552 Pearl Street, Marion, Ohio in which the defendant-appellant was allegedly using [sic].

{¶9} In his assignments of error, Scott argues that the trial court erred by

denying his motions to suppress evidence. Specifically, Scott argues that

competent, credible evidence does not support the trial court’s determination that

Deputy Allen did not include false or misleading information in the search-warrant

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affidavits intentionally or with reckless disregard for the truth. Moreover, Scott

maintains that, regardless of whether the affidavits contain false or misleading

information, the information in the affidavits is too stale to support findings of

probable cause.

{¶10} “Appellate review of a motion to suppress presents a mixed question

of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At

a suppression hearing, the trial court assumes the role of trier of fact and, as such, is

in the best position to evaluate the evidence and the credibility of witnesses. Id. See

State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a

motion to suppress, “an appellate court must accept the trial court’s findings of fact

if they are supported by competent, credible evidence.” Burnside at ¶ 8, citing State

v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s conclusions of

law, however, our standard of review is de novo, and we must independently

determine whether the facts satisfy the applicable legal standard. Id., citing State v.

McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

{¶11} The Fourth Amendment to the United States Constitution provides that

“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.” “Probable cause ‘means less than evidence which would justify

condemnation,’ so that only the ‘probability, and not a prima facie showing of

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criminal activity is the standard of probable cause.’” State v. Gonzales, 3d Dist.

Seneca Nos. 13-13-31 and 13-13-32, 2014-Ohio-557, ¶ 18, quoting State v. George,

45 Ohio St.3d 325, 329 (1989).

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.”

George at paragraph one of the syllabus, quoting Illinois v. Gates, 462 U.S. 213,

238-239, 103 S.Ct. 2317 (1983). Generally, “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.”

Id. at paragraph two of the syllabus, citing Gates. “In conducting any after-the-fact

scrutiny of an affidavit submitted in support of a search warrant, * * * 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.” Id., citing Gates.

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{¶12} “‘There is * * * a presumption of validity with respect to the affidavit

supporting [a] search warrant.’” State v. Jackson, 9th Dist. Lorain No.

14CA010593, 2015-Ohio-3520, ¶ 10, quoting Franks v. Delaware, 438 U.S. 154,

171, 98 S.Ct. 2674 (1978). Yet, “search-warrant affidavits are not unassailable.”

State v. Bingham, 3d Dist. Allen No. 1-18-71, 2019-Ohio-3324, ¶ 18. Under Franks

v. Delaware, a defendant may challenge a facially valid search-warrant affidavit by

proving that “‘a false statement knowingly and intentionally, or with reckless

disregard for the truth, was included by the affiant in the warrant affidavit * * *.’”

Id., quoting Franks at 155-156. “‘Reckless disregard’ means that the affiant had

serious doubts of an allegation’s truth.” State v. Waddy, 63 Ohio St.3d 424, 441

(1992), superseded by state constitutional amendment on other grounds, State v.

Smith, 80 Ohio St.3d 89 (1997), citing United States v. Williams, 737 F.2d 594, 602

(7th Cir.1984). “Omissions count as false statements if ‘designed to mislead, or *

* * made in reckless disregard of whether they would mislead, the magistrate.’” Id.,

quoting United States v. Colkley, 899 F.2d 297, 301 (4th Cir.1990). However, with

respect to omissions, some courts have concluded that “‘except in the very rare case

where the defendant makes a strong * * * showing that the affiant with an intention

to mislead excluded critical information from the affidavit, * * * Franks is

inapplicable to the omission of disputed facts.’” (Emphasis sic.) State v. Blaylock,

2d Dist. Montgomery No. 24475, 2011-Ohio-4865, ¶ 15, quoting Mays v. Dayton,

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134 F.3d 809, 816 (6th Cir.1998); State v. Bangera, 11th Dist. Geauga No. 2015-G-

0021, 2016-Ohio-4596, ¶ 62-64.

{¶13} When a Franks hearing is conducted, “the defendant must * * * prove

by a preponderance of the evidence that the affiant intentionally or recklessly

included a false statement in the affidavit or, in the case of an omission, excluded

critical information from the affidavit with the intention to mislead.” Bingham at ¶

21, citing Franks at 156 and Blaylock at ¶ 15-16. “If the defendant meets his burden

of proof, the court must then redact the false statement from the affidavit or

introduce the omitted information into the affidavit.” Id. “If the affidavit’s content

with the false statement removed or with the omitted information included is

insufficient to support a finding of probable cause, ‘the search warrant must be

voided and the fruits of the search warrant excluded to the same extent as if probable

cause was lacking on the face of the affidavit.’” Id., quoting Franks at 156 and

citing United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405 (1984).2

2 As an aside, we note that the proceedings in this case do not appear to have been conducted in the manner contemplated in Franks. To be entitled to a Franks hearing, a defendant must both make a “substantial preliminary showing” that a false statement was intentionally or recklessly included in the search-warrant affidavit and demonstrate that the allegedly false statement is necessary to the probable cause determination. Franks at 155-156. If the defendant fails on either count, “the Fourth Amendment does not require a special evidentiary hearing to review the validity of the search warrant.” Bingham at ¶ 20, citing State v. Roberts, 62 Ohio St.2d 170, 178 (1980). Here, it seems that the trial court proceeded to conduct a full evidentiary hearing without first requiring Scott to make a substantial preliminary showing that Deputy Allen intentionally or recklessly inserted false statements into the affidavits. Although this deviation from the procedure outlined in Franks is certainly not fatal to the trial court’s decision, in order to preserve valuable judicial resources, we encourage trial courts to hew to the procedures outlined in Franks as much as is practicable in cases such as this.

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{¶14} On appeal, Scott argues that nearly every paragraph of each of the

three search-warrant affidavits contains a materially false or misleading statement

that Deputy Allen included intentionally or with reckless disregard for the truth. To

streamline our analysis, we divide the statements into three general categories:

statements common to all three affidavits, statements specific to the affidavit for the

thermal-imaging scan, and statements common to the affidavits for 552 Pearl Street

and 354 Chestnut Street or specific to the affidavit for 354 Chestnut Street.

{¶15} We begin with statements common to all three affidavits. These

statements fall into four categories: pre-2019 information, information about a

January 2019 traffic stop, information about electricity usage at 552 Pearl Street as

compared to other properties, and information about the qualifications and

experience of Special Agent Andrew Webb (“Agent Webb”), who assisted Deputy

Allen during the investigation. We address each of these categories in turn.

{¶16} Each of the three search-warrant affidavits at issue in this case features

11 identical paragraphs containing information about Scott’s alleged involvement

with marijuana and marijuana cultivation during the period from September 8, 2000

through June 4, 2015. Most of these paragraphs relate tips given to law enforcement

officers by informants. In addition, some of the paragraphs touch on information

discovered by law enforcement officers while investigating these tips as well as

other relevant information that came to the attention of law enforcement officers

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through other means. The following paragraphs are representative of the

information contained in these 11 paragraphs:

Since September 08, 2000[,] when Jeremy Scott was arrested for

possession of marijuana[,] there have been multiple tips called in on

him. Jeremy has been stopped in multiple traffic stops and caught

with various grow equipment as well.

On August 31, 2008[,] Rita Miley called in a tip stating that she has a

child with Jeremy and that the child made a statement saying that

Jeremy is growing and selling weed.

***

On January 26, 2015[,] unknown caller reported that her

grandchildren have told her about some drug houses. Children stated

that 178 Leader Street is a drug house that nobody lives in, 345 [sic]

Chestnut Street is a drug house that nobody lives in and the owner

lives at 552 Pearl Street where he has a safe full of money there along

with guns and mean dogs. All of these houses were owned by Laureen

Strunk who is Jeremy Scott’s mother according to the female on the

tip line.

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On March 03, 2010[,] a traffic stop occurred with Jeremy Scott as the

driver. Jeremy was operating a grey Chevy Cavalier * * *[.] [D]uring

the traffic stop[,] the officer smelled the odor of marijuana and later

searched the car to find items related to a small growing operation.

These items included fluorescent lights, marijuana leaf clippings,

starter tray and an empty soil bag.

On May 21, 2015[,] MARMET pulled trash at 552 Pearl Street and

located multiple items that show Jeremy Scott appears to be growing

at this address. Located in the trash was mail that had Jeremy Scott’s

name on it, marijuana leaves, and an Ohio Edison bill for 354 Chestnut

Street, a bill ledger, and a plastic baggie with marijuana inside of it.

(Defendant’s Exs. 7, 10, 13).

{¶17} Scott claims that these 11 paragraphs contain various falsehoods and

misrepresentations. He also maintains that critical information has been omitted

from many of them. For example, with respect to the paragraphs relaying the tips

law enforcement officers received from various informants, Scott argues that

Deputy Allen should have had serious doubts about the truth of the information

contained in these tips because some of the tips came from anonymous informants,

“the most unreliable of tipsters,” and others came from named informants who

“ha[d] an animus against [him].” (Appellant’s Brief at 8-9). In addition, Scott

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contends that some of the information contained in these 11 paragraphs is so

incredible as to be obviously false and that, as a result, Deputy Allen could not have

reasonably believed in the truth of such information. (See id. at 8-10).

{¶18} Scott’s arguments are without merit. After reviewing the record, we

conclude that, with limited exceptions, Scott failed to prove that the information

contained in these 11 paragraphs was false or that critical information was omitted

from any of them. To the extent that Scott did prove the existence of misstatements

or inaccuracies within these 11 paragraphs, the record supports that such

misstatements or inaccuracies were the product of honest mistakes on the part of

Deputy Allen. However, “[a]llegations of negligence or innocent mistake are

insufficient” to invalidate a search-warrant affidavit under Franks. Franks, 438

U.S. at 171.

{¶19} Furthermore, concerning Scott’s claims about the credibility of the

informants, “the subject of [a Franks] hearing is the veracity of the affiant, not of

persons on whom he justifiably relied.” United States v. Barone, 787 F.2d 811, 814

(2d Cir.1986). Provided that Deputy Allen’s reliance on these informants was

reasonable, the fact that these informants might have lied does not supply a basis

for invalidating the search warrants. See State v. Stebner, 46 Ohio App.3d 145, 148

(11th Dist.1988) (“[A]s long as the affiant-police officer believed the information

was true and his belief was reasonable, the warrant’s validity was not affected by

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the fact that the informant may have lied about the information which formed the

basis of the search warrant.”). In this case, there is nothing in the record indicating

that Deputy Allen’s reliance was unreasonable. We recognize that tips from

anonymous informants are generally less reliable than tips received from named

informants and that tips received from allegedly biased persons should be regarded

with some suspicion. However, the tips in this case mutually corroborated one

another, and they were independently corroborated to some degree by law

enforcement officers. Furthermore, contrary to Scott’s assertion, none of these tips

is so outlandish as to render belief in their truth unreasonable.

{¶20} Next, each of the three affidavits also contains a paragraph detailing a

January 2019 traffic stop that helped to revive the investigation into Scott’s

suspected marijuana growing operation. This paragraph provides, in relevant part:

On January 16, 2019[,] Jeremy Scott was stopped in a traffic stop * *

*. The vehicle was searched and in the trunk a grow light and

amplifier was [sic] found.

(Defendant’s Exs. 7, 10, 13).3

{¶21} Scott argues that this paragraph contains false information because

“[t]he report from the stop does not mention anything about [him] having a grow

3 Although this paragraph is identical in the affidavit for the thermal-imaging scan and in the affidavit for 552 Pearl Street, this paragraph contains one additional sentence in the affidavit for 354 Chestnut Street. In the affidavit for 354 Chestnut Street, this paragraph also provides that Scott’s “vehicle was seen leaving the 300 block of Chestnut Street near where [Scott was] living.” (Defendant’s Ex. 10).

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light and amplifier in his car.” (Appellant’s Brief at 10). However, Scott fell short

of proving that the information contained in this paragraph was false. At the

suppression hearing, Deputy Allen testified that although he was not personally

involved with the stop, he spoke to an investigator who he “believe[d] was present

at the stop.” (Aug. 30, 2019 Tr. at 115-116). According to Deputy Allen, this

investigator informed him that a grow light and amplifier were discovered in the

trunk of the vehicle that Scott was driving. (Id. at 116). Therefore, although the

grow light and amplifier were not mentioned in the police report of the incident,

there is evidence supporting that these items were in fact discovered in Scott’s trunk.

Moreover, assuming that these items were not actually located in Scott’s trunk, there

is nothing in the record suggesting that Deputy Allen would have known or had

reason to know of that fact. On this record, we believe that Deputy Allen’s reliance

on the information given to him by the investigator was entirely reasonable. See

State v. Henderson, 51 Ohio St.3d 54, 57 (1990) (“‘Observations of fellow officers

of the Government engaged in a common investigation are plainly a reliable basis

for a warrant applied for by one of their number.’”), quoting United States v.

Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741 (1965).

{¶22} In addition, the three affidavits each feature paragraphs detailing

electricity usage at 552 Pearl Street as compared to similar properties. In these

paragraphs, Deputy Allen explained that after the grow light and amplifier were

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found in Scott’s vehicle during the January 2019 traffic stop, he “requested a

subpoena for the electrical records for the property at 552 Pearl Street and also for

two properties on the same street with a similar but slightly larger square footage,

to be used as a comparison.” (Defendant’s Exs. 7, 10, 13). 552 Pearl Street is

approximately 1577 square feet, whereas the comparison houses are approximately

1644 and 1788 square feet. (Defendant’s Exs. 7, 10, 13). Deputy Allen stated that

in his “training and experience[,] a property that contains an indoor marijuana grow

contains equipment * * * that requires a large amount of electricity to use, therefore

the electric bill to the property should be significantly higher than the electric bill at

the comparison properties.” (Defendant’s Exs. 7, 10, 13). The subpoenaed records

revealed that, from December 2017 through January 2019, 552 Pearl Street used

27,011 kilowatt hours. (Defendant’s Exs. 7, 10, 13). By comparison, during the

same period, 231 Pearl Street, the 1644 square foot house, used 5,103 kilowatt hours

and 189 Pearl Street, the 1788 square foot house, used 2,909 kilowatt hours.

(Defendant’s Exs. 7, 10, 13). Deputy Allen noted that the subpoenaed records

“showed a significantly higher usage of electricity on the target property compared

to the 2 comparison residences” and that the comparison “shows that this is a high

electricity usage for the property which is consistent with the usage of high wattage

indoor equipment needed in an indoor marijuana growing operation.” (Defendant’s

Exs. 7, 10, 13).

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{¶23} With respect to these paragraphs, Scott maintains that Deputy Allen

misled the issuing judges by (1) using a “form or ‘template’ to prepare the affidavit”;

(2) misrepresenting his law enforcement experience; and (3) failing to disclose that

one of the comparison houses was a duplex and that the other was vacant.

(Appellant’s Brief at 10-12). Scott argues that Deputy Allen “did not tell the Court

that he used a form for the creation of the affidavit and that much of the affidavit

was not even his own words.” (Id. at 11). In addition, he claims that by failing to

disclose that “he had only been a law enforcement officer for 3 years and had only

been on the MARMET Drug Task Force for 194 days,” Deputy Allen

misrepresented that he “had experience and education/training as to narcotics

investigations when he did not.” (Id. at 10-11). Finally, Scott argues that Deputy

Allen failed to disclose that one of the comparison houses was a duplex and that the

other was vacant, thereby distorting the comparisons and leading the issuing judges

to believe that 552 Pearl Street used much more electricity than similar properties

when in fact it did not. (Id. at 10-12).

{¶24} With respect to Scott’s first argument, under the facts of this case, it is

not significant that Deputy Allen failed to inform the issuing judges that he used a

template to draft the search-warrant affidavits. An “‘affidavit is [not] invalid to

support a search warrant simply because it ha[s] a preprinted format * * *.’” United

States v. Garcia, 528 F.3d 481, 486 (7th Cir.2008), quoting United States v. Romo,

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914 F.2d 889, 898 (7th Cir.1990). “As long as there is sufficient information to

provide probable cause for the search, the fact that the affidavit is partially pre-

prepared is irrelevant.” Romo at 898. Thus, it is immaterial whether Deputy Allen

used a “form” affidavit or whether he disclosed that fact; what matters is whether

the averments in the affidavits were accurate to the best of Deputy Allen’s

knowledge and whether those averments supported findings of probable cause.

{¶25} Furthermore, contrary to Scott’s argument, the record does not

establish that Deputy Allen misrepresented his law enforcement experience or that

he omitted details about the length of his law-enforcement service in order to

mislead the issuing judges. At the suppression hearing, Deputy Allen testified that,

in addition to his initial training at the law enforcement academy, he completed

additional training with other members of the MARMET task force when he was

assigned to the task force. (Aug. 30, 2019 Tr. at 60). In addition, Deputy Allen

completed at least one training module specific to narcotics investigations. (Doc.

Nos. 10, 13). Although Deputy Allen did not mention that he had been a law

enforcement officer for only three years and a member of the MARMET task force

for less than a year, the record does not support that Deputy Allen misrepresented

his qualifications or that he made statements about marijuana growing operations

that exceeded the scope of his training and experience.

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{¶26} Finally, we consider whether competent, credible evidence supports

the trial court’s finding that Scott did not prove that Deputy Allen misled the issuing

judges about the comparison houses. With respect to the comparison houses, the

trial court found that Scott did not present “evidence that is convincing that 189

Pearl was empty or that half of 231 Pearl is vacant, or that it’s not consuming

electricity in some fashion, even if it is vacant.” (Oct. 9, 2019 Tr. at 38-39). The

trial court was not “convince[d] * * * that this electrical comparison [was] not fair.”

(Id. at 39).

{¶27} At the suppression hearing, Deputy Allen testified that he selected the

comparison houses based on information from the Marion County Recorder’s

Office showing that the houses were approximately the same size as 552 Pearl

Street. (Aug. 30, 2019 Tr. at 96). However, he stated that he did not notice that the

records for 231 Pearl Street indicated that it was a duplex. (Id.). Deputy Allen

testified that he drove by 231 Pearl Street and 189 Pearl Street in February 2019,

but he admitted that he did not knock on the door of either house or otherwise verify

how many people, if any, lived in the houses. (Id. at 95-97, 99, 101). With respect

to 231 Pearl Street, Deputy Allen stated that he did not notice that there were two

electric meters attached to the house and that he believed that 231 Pearl Street was

a single-family home. (Id. at 98). Furthermore, he testified that he did not know

whether the subpoenaed electrical records for 231 Pearl Street documented the

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electricity usage for the entire duplex or whether the records documented the

electricity used in only one half of the duplex. (Id. at 97). Finally, with respect to

189 Pearl Street, Deputy Allen testified that, although the property appeared

overgrown, “[i]t did not appear vacant” and that he assumed that it was occupied.

(Id. at 99-101).

{¶28} In addition, Thomas Burton (“Burton”), one of Scott’s friends,

testified that he was familiar with 231 Pearl Street and 189 Pearl Street. Burton

stated that he knew the family that lived at 231 Pearl Street and that, from his

familiarity with the family, he knew that 231 Pearl Street was a duplex. (Sept. 26,

2019 Tr. at 59-61). In addition, he testified that 189 Pearl Street “looks like an

abandoned house” and that “as long as [he has] lived in Marion, it’s always been

like * * * the creepy old cat lady house * * *.” (Id. at 64-65). He noted that the

yard at 189 Pearl Street was “overgrown and unkempt, like you would expect from

an abandoned house.” (Id. at 68).

{¶29} Furthermore, Burton identified a series of photographs of 231 Pearl

Street and 189 Pearl Street that he took in June 2019. (Id. at 58, 60); (Defendant’s

Exs. 18-29). Defendant’s Exhibits 18-21, which depict 231 Pearl Street, show that

231 Pearl Street has two electric meters, two mailboxes, and numerous access doors,

all of which are clearly visible from the street. Defendant’s Exhibits 22-29, which

depict 189 Pearl Street, show overgrown grass, bushes, and trees as well as some

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paper trash accumulated on the front porch. Burton testified that when he took the

pictures of 189 Pearl Street, he knocked on the door but no one answered. (Sept.

26, 2019 Tr. at 66). However, he admitted that because he never went inside of 189

Pearl Street, he did not know whether the air conditioning or heat were running

while he was there or whether the house was supplied with electricity. (Id. at 75-

77). Moreover, Burton acknowledged that, although the yard at 189 Pearl Street

was poorly maintained, the walls and roof were not “falling in.” (Id. at 75).

{¶30} After reviewing the evidence presented at the suppression hearing, we

conclude that competent, credible evidence supports the trial court’s findings. First,

Scott failed to demonstrate that 189 Pearl Street was vacant. At most, Scott proved

that the yard at 189 Pearl Street was not ideally cared for and that he and others, like

Burton, regarded the house as vacant based on its appearance. Furthermore, while

we believe that Scott established that 231 Pearl Street is a duplex, Scott failed to

prove that the subpoenaed electrical records inaccurately represented the total

amount of electricity used at 231 Pearl Street. As noted by the trial court, “[t]here

was no testimony about whether both meters are operational,” it is “unclear * * *

from the testimony whether that duplex is completely occupied by [Burton’s

acquaintance] or whether or not the other half of it is simply empty,” and there was

“no testimony as to what the square footage split of the house is.” (Oct. 9, 2019 Tr.

at 37-38). Thus, we agree with the trial court that Scott did not present evidence

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sufficient to prove that 189 Pearl Street was vacant or that the subpoenaed records

inaccurately reflected the total electricity usage at 231 Pearl Street. Accordingly,

this case is distinguishable from other cases in which courts found that the defendant

presented evidence sufficient to prove that the comparison properties were so unlike

the target property that the comparison was misleading and should not have been

relied on to determine probable cause. See, e.g., State v. Bryant, 5th Dist. Holmes

Nos. 10CA019 and 10CA020, 2011-Ohio-3353, ¶ 7, 32 (averment in affidavit

indicating that the target residence used more electricity as compared to neighboring

properties was reckless because “the evidence presented revealed * * * [that there

was no] information regarding the square footage of, or types of, [the comparison]

buildings,” one of which was a freezer barn).

{¶31} Finally, the three affidavits each contain a paragraph summarizing the

training, experience, and qualifications of Agent Webb of the Ohio Bureau of

Criminal Investigation (“BCI”). As Deputy Allen did not have experience with

thermal-imaging devices, Deputy Allen worked with Agent Webb “for the use of

[BCI’s] thermal imagery equipment and their certifications for said equipment.”

(Defendant’s Exs. 7, 10, 13). Deputy Allen stated that “Agent Webb is certified as

a law enforcement thermographer with training and experience utilizing thermal

imaging equipment in the investigation of indoor marijuana grow operations.”

(Defendant’s Exs. 7, 10, 13). Moreover, according to Deputy Allen, Agent Webb

-22- Case No. 9-20-05

“has conducted numerous investigations of indoor and outdoor marijuana grow

operations that have led to arrests, indictments and convictions.” (Defendant’s Exs.

7, 10, 13).

{¶32} Scott argues that Deputy Allen falsely claimed that Agent Webb is a

certified law-enforcement thermographer because Agent Webb “did not claim to be

certified at all as a thermographer * * * [and] said he was unaware of any continuing

education requirements that a thermographer had to meet.” (Appellant’s Brief at

12). Scott notes that Agent Webb “said he was unaware of the different levels of

certification that a thermographer could reach” and that Agent Webb took only a

“24 hour course * * * on thermal imaging in 2013” and a seminar at which it was

mentioned that thermal imaging could be used to detect the presence of an indoor

marijuana growing operation. (Id.).

{¶33} We are not persuaded. Scott’s argument is premised on the testimony

of R. James Seffrin (“Seffrin”), a “certified infrared thermographer.” (Aug. 30,

2019 Tr. at 125). Seffrin testified that the company that he owns and leads,

Infraspection Institute, offers four levels of certification in thermography: Level I,

Level II, Level III, and Master. (Id. at 126-127). However, Seffrin did not testify

that the certifications offered through his company are the sole certifications

available to thermographers generally or to law-enforcement thermographers

specifically. Moreover, it is undisputed that Agent Webb completed a 24-hour

-23- Case No. 9-20-05

training course put on by the Law Enforcement Thermographer’s Association and

that he attended another course that touched on the use of thermal imaging in

criminal investigations. (Aug. 30, 2019 Tr. at 19-20); (Defendant’s Ex. 1). In

addition, Agent Webb testified that he had used thermal-imaging devices in

approximately 30 investigations over 6 years. (Aug. 30, 2019 Tr. at 21-22).

Therefore, while Agent Webb might not have possessed any of the certifications

available through Seffrin’s company, the record does not support that Deputy Allen

intentionally or recklessly misrepresented Agent Webb’s certifications or

experience with the use of thermal-imaging devices in the investigation of indoor

marijuana growing operations.

{¶34} Next, we consider the second category of statements: statements

specific to the affidavit used to support Deputy Allen’s request for authorization to

scan 552 Pearl Street with a thermal-imaging device. This affidavit features various

paragraphs explaining that a “thermal image evaluation” might provide information

that could “corroborate other information developed in this investigation that is

indicative of an indoor marijuana growing operation.” (Defendant’s Ex. 7).

Furthermore, in these paragraphs, which were part of the existing template Deputy

Allen used to draft his affidavit, Deputy Allen attempted to provide a brief

explanation of the scientific principles underlying thermal imaging. (Id.). He also

stated that “thermal imaging equipment is a valuable tool for law enforcement in

-24- Case No. 9-20-05

conducting indoor marijuana growing investigations.” (Id.). Finally, Deputy Allen

tried to explain how a thermal-imaging device functions and what might be

discovered by scanning 552 Pearl Street with a thermal-imaging device. (Id.).

{¶35} Scott’s arguments about the alleged falsehoods and inaccuracies in

these paragraphs are elaborate and numerous. Basically, Scott argues that (1)

Deputy Allen falsely claimed that the results of a thermal-imaging scan could

provide probative evidence of an indoor marijuana growing operation; (2) Deputy

Allen inaccurately described the science of heat transfer and thermal imaging and

the capabilities of thermal-imaging devices; and (3) Deputy Allen misrepresented

the conditions of an indoor marijuana growing operation in a way that created “an

unreasonable expectation * * * as to * * * the conditions [a thermal-imaging device]

can detect.” (Appellant’s Brief at 12-17).

{¶36} We cannot find merit in any of Scott’s arguments. First, we flatly

reject Scott’s claim that a thermal-imaging scan could not have produced probative

evidence of indoor marijuana cultivation. Scott suggests that thermal imaging might

be probative if “there was a flyover of an old barn in the middle of nowhere emitting

* * * infrared * * * radiation” but that it would not be probative with respect to a

“thermal flyover of a house that will, like all houses, be emitting invisible infrared

radiation * * *.” (Appellant’s Brief at 14). However, although the former type of

thermal-imaging scan might produce stronger evidence of indoor marijuana

-25- Case No. 9-20-05

cultivation, this does not mean that the latter type of scan cannot produce any

evidence of marijuana cultivation. In addition, Scott has failed to cite to any case

in which a court has concluded that thermal imaging cannot provide probative

evidence of indoor marijuana cultivation, and our independent research has not

uncovered any such case. While we agree with Scott that a thermal-imaging scan

cannot itself produce conclusive evidence of indoor marijuana cultivation, we are

of the opinion that the results of a thermal-imaging scan do have some probative

value and that, even if the value of such results is limited, they can be appropriately

considered by a judge in determining whether the totality of the circumstances

supports the issuance of a search warrant.

{¶37} Furthermore, we cannot conclude that Deputy Allen’s statements

about the science of thermal imaging, the capabilities of thermal-imaging devices,

and the conditions of an indoor marijuana growing operation were so erroneous as

to mislead the issuing judge. For these arguments, Scott again relies on Seffrin’s

expertise in thermal imaging. Throughout his testimony and in his expert report,

Seffrin described many instances where he believed that Deputy Allen either

inaccurately characterized the science of thermal imaging, gave a false impression

of the capabilities of thermal-imaging devices, or misrepresented the conditions

associated with an indoor marijuana growing operation. (See Aug. 30, 2019 Tr. at

125-172); (See Defendant’s Ex. 35). However, after reviewing Seffrin’s testimony

-26- Case No. 9-20-05

and expert report, in which he offers “correct” explanations of the science of

thermal-imaging, the capabilities of thermal-imaging devices, and the conditions

associated with an indoor marijuana grow, we find that Deputy Allen’s statements

were not so at odds with the “correct” explanations as to render them materially

misleading. We are mindful that Deputy Allen is not a scientist; he is a law

enforcement officer who was writing for an audience trained in the law rather than

in the science of heat transfer and thermography. While Deputy Allen’s descriptions

likely would not qualify him for publication in a scientific journal or for a job

writing technical manuals, they were accurate enough to give the issuing judge a

general understanding of the subject matter and, therefore, accurate enough for

purposes of obtaining a search warrant. Moreover, even if they were not sufficiently

accurate, there is no indication that Deputy Allen knew or should have known that

he was misrepresenting this information or that Deputy Allen omitted more-accurate

descriptions with an intention to mislead the issuing judge.

{¶38} Lastly, we consider the third category of statements: statements

common to the affidavits for 552 Pearl Street and 354 Chestnut Street or specific to

the affidavit for 354 Chestnut Street. The search-warrant affidavits for 552 Pearl

Street and 354 Chestnut Street both contain a paragraph relaying the results of the

thermal-imaging scan conducted on March 1, 2019. This paragraph provides:

-27- Case No. 9-20-05

On February 28, 2019[,] a search warrant for a thermal imaging device

was signed by Judge Brent Rowland and on March 01, 2019[,] a

thermal imaging device was used to check the temperature levels at

552 Pearl Street. During this search warrant[,] the house appears to

be consistent with a marijuana growing operation.

(Defendant’s Exs. 10, 13).

{¶39} Scott argues that, in this paragraph, Deputy Allen falsely claimed that

a thermal-imaging device was used to detect temperature levels because, according

to Seffrin, “thermal imaging equipment is incapable of measuring temperatures.”

(Appellant’s Brief at 21). He maintains that thermal-imaging devices instead

“detect[] invisible heat radiation emitted from an object * * *.” (Id.). Scott also

claims that Deputy Allen intentionally or recklessly misled the court because

“Seffrin says it is impossible to say a house can appear as a location of an indoor

marijuana growing operation as there ‘is no single thermal pattern that is consistent

with indoor marijuana cultivation for any structure.’” (Id.).

{¶40} Both of these arguments are unpersuasive. As with Deputy Allen’s

other descriptions of the science of thermal imaging and the capabilities of thermal-

imaging devices, we do not believe that Deputy Allen’s statements were so incorrect

as to mislead the issuing judge. While perhaps not entirely accurate, Deputy Allen’s

statement was more than sufficient to give the reviewing judge a working

-28- Case No. 9-20-05

understanding of the thermal-imaging scan that was performed on March 1, 2019,

and in any event, there is no evidence that Deputy Allen knew or should have known

that the thermal-imaging device detected “invisible heat radiation” rather than

“temperature levels.”

{¶41} In addition, despite Seffrin’s disagreement with the conclusion that the

results of the thermal-imaging scan were consistent with an indoor marijuana

growing operation, a conclusion conveyed to Deputy Allen by Agent Webb, Scott

has failed to carry his burden of demonstrating that this statement was included in

the affidavits as a result of Deputy Allen’s deliberate falsehood or reckless disregard

for the truth. First, we are not convinced that Scott actually proved that this

statement was false. During his testimony, Seffrin admitted that “[t]hermal imaging

requires interpretation of the data which in and of itself is subjective at some level.”

(Aug. 30, 2019 Tr. at 170). He also stated that it is possible for people to interpret

thermal-imaging results differently, though he suggested that differing

interpretations result from inadequate training. (Id.). Thus, Seffrin’s testimony

leaves open the possibility that Agent Webb’s findings were a reasonable

interpretation of the data, notwithstanding Seffrin’s disagreement.

{¶42} Regardless, even if Agent Webb’s conclusions were incorrect, what

matters is whether Deputy Allen knew or had reason to know that Agent Webb’s

conclusions were wrong when he included them in the affidavits. Nothing in the

-29- Case No. 9-20-05

record indicates that Deputy Allen knew that Agent Webb’s conclusions were

inaccurate or that Deputy Allen had any cause to question the soundness of those

conclusions. Accordingly, we find no fault in Deputy Allen’s decision to accept

Agent Webb’s conclusions as truthful. See United States v. Lonardo, W.D.N.Y. No.

10-cr-6226, 2012 WL 3685958, *5 (June 27, 2012). Moreover, under these

circumstances, Deputy Allen was not required to verify Agent Webb’s findings by

conducting his own independent investigation or consulting another expert before

including Agent Webb’s findings in the affidavits. See id., citing United States v.

Harding, 273 F.Supp.2d 411, 428 (S.D.N.Y.2003).

{¶43} Finally, the search-warrant affidavit for 354 Chestnut Street contains

three paragraphs that do not appear in the other two affidavits. These paragraphs

provide:

21. Throughout the time that I[, Deputy Allen,] have been

investigating Jeremy Scott[,] I have been able to observe him coming

and going from 354 Chestnut Street. His vehicle is a silver Mercedes

* * * [and] the registration on this vehicle returns to the address of

354 Chestnut Street. Jeremy Scott’s Ohio driver’s license also returns

to 354 Chestnut Street. The bills for Jeremy’s electricity were

subpoenaed and it was found that he has electricity bills at both 552

-30- Case No. 9-20-05

Pearl Street and 354 Chestnut Street that come in his name through

Ohio Edison.

22. I spoke with Detective Matt Baldridge whom advised me he had

gotten a tip from Jamie Ernst about Jeremy having marijuana at his

residence on Chestnut Street. Jamie who was in a relationship with

Jeremy Scott years ago has a daughter with Jeremy * * *. Jamie stated

that [their daughter] had sent her photos of the marijuana, and she

forwarded them to us on December 29, 2019 [sic]. I reviewed the

photos and with my training and experience it appeared to be a plastic

red tub full of marijuana clippings. I was advised that the tub was in

a locked closet that was in the kitchen at Jeremy’s residence on

Chestnut Street.

23. Due to previous tips stating that Jeremy has been seen going in

and out of Chestnut Street with a backpack in the past and a recent tip

with Jeremy being traffic stopped and in possession of grow

equipment as well as photos from his daughter that show marijuana

clippings in the residence it is suspected that Jeremy is taking the

marijuana that he is growing from 552 Pearl Street and keeping it and

other related items at 354 Chestnut Street.

(Defendant’s Ex. 10).

-31- Case No. 9-20-05

{¶44} Scott attacks each of these paragraphs, and we begin with Scott’s

arguments concerning paragraph 22. Scott argues that this paragraph is false or

misleading for the following reasons: (1) “There were not photos in as plural or

many, but only one photo”; (2) “Allen said in the affidavit that the tub was locked

in a closet in the kitchen” but “the photo shows the tub out in the open in a room

which appeared not to be a kitchen”; (3) the photograph depicting the tub full of

vegetation might have been doctored; and (4) Deputy Allen “knew he could not

honestly say the vegetation [in the photograph] was marijuana or at minimum he

was expressing a reckless disregard for the truth as he had doubts in his own mind

what the vegetation was.” (Appellant’s Brief at 22-23).

{¶45} We can quickly dispose of Scott’s first two arguments. Although Scott

is technically correct that paragraph 22 is inaccurate insofar as Deputy Allen had

only one photograph to review, Scott has not shown that these pluralizations were

anything more than innocent misstatements on Deputy Allen’s part. What is more,

to fault Deputy Allen for his imprecision would be to engage improperly in a

“hypertechnical” construction of the search-warrant affidavit. See State v. Hobbs,

4th Dist. Adams No. 17CA1054, 2018-Ohio-4059, ¶ 27 (“[R]eviewing courts must

refrain from interpreting search-warrant affidavits ‘“in a hypertechnical, rather than

a commonsense, manner.”’”), quoting Gates, 462 U.S. at 236, quoting Ventresca,

380 U.S. at 109. In addition, Scott has not demonstrated that Deputy Allen knew

-32- Case No. 9-20-05

that the picture did not portray the kitchen closet or that Deputy Allen believed that

the photograph did not depict what it purported to depict.

{¶46} Furthermore, with respect to Scott’s third argument, even assuming

that the photograph was doctored, Scott has failed to establish that Deputy Allen

knew or should have known that the photograph had been modified. Because

Deputy Allen had not been inside of 354 Chestnut Street at any time before he

requested the search warrant, he did not know what the room depicted in the

photograph actually looked like. Deputy Allen received information suggesting that

the photograph was taken from inside a kitchen closet at 354 Chestnut Street, and

we believe that it was reasonable for him to rely on that information. Moreover,

although there are clear differences between the room as depicted in the photograph

used by Deputy Allen and the room as depicted in photographs taken after the search

warrant was executed, there are no obvious signs of doctoring in the photograph

relied on by Deputy Allen. (See Defendant’s Exs. 16, 17).

{¶47} Scott’s fourth argument, however, warrants slightly more attention.

To support this argument, Scott points to the testimony of Dr. Hannah Mathers (“Dr.

Mathers”), who was qualified as an expert in plant identification. (Sept. 26, 2019

Tr. at 14). At the suppression hearing, Dr. Mathers stated that she examined

Defendant’s Exhibit 16, the photograph used by Deputy Allen, to determine whether

the vegetation contained in the tub portrayed in the photograph was marijuana. Dr.

-33- Case No. 9-20-05

Mathers testified that “due to the quality of the picture, [it was] really difficult to

identify [the vegetation].” (Id. at 28). Nevertheless, Dr. Mathers concluded that

there were “no distinguishing characteristics in [Defendant’s Exhibit 16] to identify

[the vegetation] as cannabis.” (Id.).

{¶48} Based on Dr. Mathers’s testimony, the trial court stated that it

“certainly h[ad] * * * doubts * * * as to whether or not what is in Defendant’s

Exhibit 16 is marijuana or not,” though it did not definitively find that the vegetation

depicted in Defendant’s Exhibit 16 is not marijuana. (Oct. 9, 2019 Tr. at 35-36).

After reviewing Defendant’s Exhibit 16 and Dr. Mathers’s testimony, we share the

trial court’s doubts. Therefore, although we cannot make the initial finding that

Defendant’s Exhibit 16 does not depict marijuana, we will assume for the sake of

Scott’s argument that it does not depict marijuana.

{¶49} Yet, as noted by the trial court, “the question isn’t really about * * *

what is actually in the picture. It’s [about] what a reasonably trained officer or

affiant would believe it is.” (Id. at 35). “[T]he requirement that an affiant be truthful

in an application for a search warrant does not mean that every fact stated in the

application is correct.” Lonardo, 2012 WL 3685958, at *5. Although an affiant

must be truthful,

[t]his does not mean “truthful” in the sense that every fact recited in

the warrant affidavit is necessarily correct, for probable cause may be

-34- Case No. 9-20-05

founded upon hearsay and upon information received from

informants, as well as upon information within the affiant’s own

knowledge that sometimes must be garnered hastily. But surely it is

to be “truthful” in the sense that the information put forth is believed

or appropriately accepted by the affiant as true.

Franks, 438 U.S. at 165.

{¶50} Here, there is absolutely no evidence that Deputy Allen knew that

Defendant’s Exhibit 16 did not depict marijuana when he executed the affidavit for

354 Chestnut Street. Nor is there any evidence that Deputy Allen had serious doubts

about whether the photograph portrayed marijuana when he submitted the affidavit.

At a quick glance, one could certainly mistake the vegetation in Defendant’s Exhibit

16 for marijuana clippings, and coupled with the tip that Scott was keeping

marijuana at 354 Chestnut Street, it was not manifestly unreasonable for Deputy

Allen to believe, in light of his training and experience, that Defendant’s Exhibit 16

appeared to depict some of the marijuana referred to in the tip. Moreover, while

consultation with an expert such as Dr. Mathers could have aided Deputy Allen in

determining whether Defendant’s Exhibit 16 did in fact depict marijuana clippings,

we cannot say that Deputy Allen’s failure to do so was reckless. Therefore, we

conclude that competent, credible evidence supports the trial court’s determination

-35- Case No. 9-20-05

that Deputy Allen did not knowingly or recklessly mislead the issuing judge with

respect to Defendant’s Exhibit 16.

{¶51} Finally, while Scott contends that there are problems with paragraphs

21 and 23 of the affidavit for 354 Chestnut Street, his arguments are unavailing. For

the most part, Scott simply rehashes arguments that he made previously, such as

that these paragraphs are partly false because Deputy Allen actually reviewed only

one photograph, rather than multiple photographs, and that the police report from

the January 2019 traffic stop did not mention that a grow light and amplifier were

discovered in the vehicle. Having already rejected these arguments, we need not

consider them again. Scott’s other arguments do not so much assert that these

paragraphs contain false information as claim that they describe innocent,

noncriminal behaviors that cannot contribute to a finding of probable cause.

However, “innocent behavior frequently will provide the basis for a showing of

probable cause * * *.” Gates, 462 U.S. at 243, fn. 13. “The relevant inquiry when

examining the totality of the circumstances supporting probable cause ‘is not

whether particular conduct is “innocent” or “guilty,” but the degree of suspicion that

attaches to particular types of noncriminal acts.’” State v. Schlick, 8th Dist.

Cuyahoga No. 77885, 2000 WL 1803216, *4 (Dec. 7, 2000), quoting Gates at 243,

fn. 13. Thus, the fact that these paragraphs describe conduct that might appear

-36- Case No. 9-20-05

innocent when viewed in isolation does not alone preclude a finding of probable

cause or provide a basis for invalidating the warrant.

{¶52} To summarize the foregoing, we conclude that competent, credible

evidence supports the trial court’s finding that Deputy Allen did not knowingly and

intentionally, or with reckless disregard for the truth, include false statements in any

of the search-warrant affidavits. Yet, despite this conclusion, we must still

determine whether the search-warrant affidavits contain information sufficient to

support the issuing judges’ probable-cause determinations. This requires us to

address Scott’s argument that the information contained in the search-warrant

affidavits is too stale to support findings of probable cause.

{¶53} “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.” State v. Maranger, 2d Dist.

Montgomery No. 27492, 2018-Ohio-1425, ¶ 36, citing State v. Jones, 72 Ohio

App.3d 522, 526 (6th Dist.1991). “‘The more “stale” the evidence becomes, the

less likely it is to support probable cause.’” State v. Morales, 10th Dist. Franklin

No. 17AP-807, 2018-Ohio-3687, ¶ 19, quoting State v. Ridgeway, 4th Dist.

Washington No. 00CA19, 2001 WL 1710397 (Nov. 21, 2001). However, “[n]o

arbitrary time limit dictates when information becomes ‘stale.’” Maranger at ¶ 36,

citing Jones at 526. Rather, “‘[t]he test for staleness is whether the alleged facts

-37- Case No. 9-20-05

justify the conclusion that contraband is probably on the person or premises to be

searched at the time the warrant issues.’” Morales at ¶ 19, quoting State v. Ingold,

10th Dist. Franklin No. 07AP-648, 2008-Ohio-2303, ¶ 22 and citing State v. Rieves,

8th Dist. Cuyahoga No. 105386, 2018-Ohio-955, ¶ 31.

{¶54} “‘The question of staleness is not measured solely by counting the

days between the events listed in the affidavit and the application for warrant.’” Id.

at ¶ 20, quoting Ingold at ¶ 23. “‘Ohio courts have identified a number of factors to

consider in determining whether the information contained in an affidavit is stale,

including the character of the crime, the criminal, the thing to be seized, as in

whether it is perishable, the place to be searched, and whether the affidavit relates

to a single isolated incident or ongoing criminal activity.’” Id., quoting Ingold at ¶

23 and citing United States v. Brooks, 594 F.3d 488, 493 (6th Cir.2010). “The

question of staleness, then, depends on the ‘inherent nature of the crime.’” United

States v. Thomas, 605 F.3d 300, 309 (6th Cir.2010), quoting United States v.

Henson, 848 F.2d 1374, 1382 (6th Cir.1988). “A marijuana growing operation,

which is a long-term operation, may allow for greater lapses of time between the

information relied upon and the request for a search warrant.” Id. at 310, citing

United States v. Greany, 929 F.2d 523, 525 (9th Cir.1991) and United States v.

Thomas, 6th Cir. Nos. 92-6207 and 92-6208, 1993 WL 337553, *3 (Aug. 31, 1993).

This is at least in part due to the fact that the items used in the cultivation of

-38- Case No. 9-20-05

marijuana are “likely to be in service for several years” and “possess[] enduring

worth and utility.” United States v. Schaefer, 87 F.3d 562, 568 (1st Cir.1996), citing

United States v. McKeever, 5 F.3d 863, 866 (5th Cir.1993) and United States v.

Sturmoski, 971 F.2d 452, 457 (10th Cir.1992).

{¶55} Furthermore, “‘[w]here recent information corroborates otherwise

stale information, probable cause may be found.’” United States v. Spikes, 158 F.3d

913, 924 (6th Cir.1998), quoting Henson at 1381-1382. That is, stale information

may be “refreshed” when law enforcement officers acquire “newer information that

relates back to the subject of the older information.” United States v. Cintron, 243

Fed.Appx. 676, 679 (3d Cir.2007), citing United States v. Tehfe, 722 F.2d 1114,

1120 (3d Cir.1983).

{¶56} Here, we have little doubt that if law enforcement officers had sought

search warrants in 2015 based solely on pre-2019 information, a judge could have

easily found that there was probable cause both to scan 552 Pearl Street with a

thermal-imaging device and to search inside 552 Pearl Street and 354 Chestnut

Street for evidence of a marijuana growing operation. With the exception of the

information about Scott’s possession of marijuana in September 2000, which is of

minimal probative value given Scott’s age at the time, 15, and its distant relation in

time to the other information in the affidavits, the three affidavits document that

from 2008 through 2015, law enforcement officers received a steady stream of tips

-39- Case No. 9-20-05

connecting Scott to a marijuana cultivation and trafficking operation based out of

552 Pearl Street and 354 Chestnut Street. Many of these tips came from anonymous

informants, who are generally less reliable, and from identified informants who,

according to Scott, were not disinterested and had a motive to fabricate their

allegations. However, these tips corroborated one another to some degree, and in

any event, law enforcement officers independently corroborated the tips when

evidence of marijuana cultivation was discovered in the vehicle that Scott was

driving in 2010 and in the trash at 552 Pearl Street in 2015. Thus, we believe that,

at least in 2015, there would have been more than enough evidence to support the

issuance of the three search warrants at issue in this case.

{¶57} Yet, law enforcement officers did not seek these warrants in 2015.

Instead, it was not until 2019, when law enforcement officers received new

information suggesting that Scott was still growing marijuana, that Deputy Allen

requested the warrants. By the time Deputy Allen requested the search warrants in

February and March 2019, the majority of the information contained in the three

affidavits was at least 44 months old. Therefore, assuming that the pre-2019

information became stale during this period, the critical issue becomes whether the

information discovered at or around the beginning of 2019 refreshed the otherwise

stale pre-2019 information.

-40- Case No. 9-20-05

{¶58} Based on the particular circumstances of this case, we believe that the

information collected at or near the beginning of 2019 was probably sufficient to

refresh the pre-2019 information. The grow light and amplifier discovered in

Scott’s vehicle during the January 2019 traffic stop demonstrated that Scott had not

dispossessed himself completely of the equipment used to cultivate marijuana.

Although the presence of a single grow light and amplifier would not likely have

been enough to tie Scott’s conduct in 2019 to the kind of large-scale marijuana

growing operation described throughout the pre-2019 portions of the search-warrant

affidavits, the utility records for 552 Pearl Street, which showed an exceptionally

high level of electricity usage especially as compared to similarly sized properties,

were a much stronger indicator of an ongoing marijuana growing operation. This is

true even if we were to accept Scott’s claims that 189 Pearl Street was vacant and

that 231 Pearl Street was a duplex whose total electricity consumption was not

accurately reported in the search-warrant affidavits. For example, if the actual total

usage for 231 Pearl Street was triple that of its reported usage, 552 Pearl Street still

would have used nearly 12,000 kilowatt hours more than 231 Pearl Street over the

relevant period. Thus, even with less-than-perfect comparison houses, the raw

electricity-usage data both refreshes the pre-2019 information and serves as

corroborating evidence of a continuing marijuana growing operation at 552 Pearl

-41- Case No. 9-20-05

Street. See United States v. Hoang, 487 Fed.Appx. 239, 242-245 (6th Cir.2012);

Thomas, 605 F.3d at 310, 310, fn. 9.

{¶59} Furthermore, to the extent that the elevated electricity usage at 552

Pearl might be accounted for in another way, the fact that the results of the thermal-

imaging scan were consistent with indoor marijuana growing suggested that Scott

had at least restarted the marijuana growing operation, if he had ever suspended it.

Finally, the tip that indicated that Scott was storing marijuana at 354 Chestnut Street

served to renew the link between 552 Pearl Street and 354 Chestnut Street and

suggested that Scott was still using multiple locations to run a marijuana growing

operation.

{¶60} Ultimately, however, we need not definitively resolve the question of

staleness because, even if the information in the affidavits were too stale to support

findings of probable cause, suppression would not be appropriate. “The

exclusionary rule should not bar the use of evidence obtained by officers acting in

objectively reasonable reliance on a search warrant issued by a detached and neutral

magistrate even if that warrant is ultimately found to be unsupported by probable

cause.” State v. Reece, 3d Dist. Marion No. 9-17-27, 2017-Ohio-8789, ¶ 17, citing

George, 45 Ohio St.3d at 325, citing Leon, 468 U.S. 897. Nevertheless, the good-

faith exception is inapplicable and suppression is still appropriate

-42- Case No. 9-20-05

where the magistrate or judge who issued the warrant was misled by

information in the affidavit that the affiant knew was false or would

have known was false if not for reckless disregard of the truth, where

the magistrate wholly abandoned his judicial function in issuing the

warrant, where the affidavit is “so lacking in indicia of probable cause

as to render belief in its existence entirely unreasonable,” or where the

warrant is so facially deficient that officers cannot reasonably

presume its validity.

Id., quoting George at 331, citing Leon at 923.

{¶61} In this case, there is neither argument nor evidence that the issuing

judges wholly abandoned their judicial functions. Furthermore, the warrants are not

so facially deficient that the executing officers could not reasonably presume their

validity, and we have already concluded that the evidence does not support that the

issuing judges were misled by information in the affidavits that Deputy Allen knew

was false or would have known was false if not for reckless disregard of the truth.

Therefore, the applicability of the good-faith exception turns on whether the search-

warrant affidavits contain sufficient indicia of probable cause.

{¶62} We conclude that because the search-warrant affidavits contain more

than sufficient indicia of probable cause, the good-faith exception applies regardless

of whether the information in the affidavits is otherwise too stale to support findings

-43- Case No. 9-20-05

of probable cause. Each of the three affidavits contains information, collected over

many years, that connected Scott to a fairly large-scale, longstanding marijuana

growing operation. Much of this information came from people who were relatively

close to Scott, and although it is alleged that these people had reason to fabricate

their tips, the information received from these informants was consistent with

information received from anonymous informants and consistent over time. To the

extent that any of these tips were unreliable, they were corroborated when evidence

of marijuana cultivation was discovered in Scott’s trash and in his vehicle during

the 2010 traffic stop. As for the information received around the beginning of 2019,

the electricity-usage records for 552 Pearl Street, the results of the thermal-imaging

scan, and the tip stating that Scott was storing marijuana at 354 Chestnut Street are,

when considered with other information received in 2019, relatively strong evidence

that Scott was still running a marijuana growing operation out of 552 Pearl Street

and 354 Chestnut Street. Although a considerable period of time elapsed between

the receipt of most of the information contained in the affidavits and Deputy Allen’s

requests for the search warrants, there is a straight line from the pre-2019

information to the information received in 2019. A reasonable law enforcement

officer could recognize a direct link between the pre-2019 information and the

information received in 2019 and conclude that, based on the information received

in 2019, there was a sufficiently high probability that Scott was running the same

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marijuana growing operation in 2019 that he was allegedly running in years

previous, evidence of which might be discovered inside of 552 Pearl Street and 354

{¶63} Scott’s assignments of error are overruled.

{¶64} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

/jlr

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