State v. Stewart

2022 Ohio 2306

Opinion

[Cite as State v. Stewart, 2022-Ohio-2306.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Earle E. Wise, Jr., P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : JALEN LEE STEWART : Case No. 21-CA-00014 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 20-CR-0100

JUDGMENT: Affirmed and Remanded

DATE OF JUDGMENT: June 29, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOSEPH A. FLAUTT SCOTT P. WOOD 111 North High Street 120 East Main Street P.O. Box 569 Suite 200 New Lexington, OH 43764-0569 Lancaster, OH 43130 Perry County, Case No. 21-CA-00014 2

Wise, Earle, P.J.

{¶ 1} Defendant-Appellant, Jalen Lee Stewart, appeals the May 28, 2021 denial

of his motion to suppress by the Court of Common Pleas of Perry County, Ohio. Plaintiff-

Appellee is state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On March 4, 2020, law enforcement officers executed a search warrant on

a residence located on East Lake Street in Perry County, Ohio. Appellant was inside

along with drugs, drug manufacturing equipment, firearms, and firearm parts. After the

officers secured appellant, he bragged about how he could have shot several of the

SWAT officers as they were approaching his residence.

{¶ 3} On June 16, 2020, the Perry County Grand Jury indicted appellant on

several drug counts along with firearm specifications. Appellant was arraigned and

released on a personal recognizance bond. Thereafter, it came to the attention of law

enforcement officers that appellant was building, buying, and selling firearms.

{¶ 4} On December 4, 2020, a warrant on complaint was filed against appellant

on weapons charges.

{¶ 5} On December 8, 2020, officers obtained a search warrant for the East Lake

Street residence and unattached garage for appellant's person to serve upon him the

arrest warrant. The search warrant authorized the officers to conduct a protective sweep

of the home and garage. Officers arrived at the location and set up a perimeter.

Explosives were placed on the front door to breach and on the side of the house as a

distraction. Officers knocked and announced their presence. Appellant exited the

residence and closed the door behind him. He was immediately handcuffed and placed Perry County, Case No. 21-CA-00014 3

in a police cruiser. Officers discharged the explosives and cleared the house. The sweep

took approximately three to five minutes. No other individuals were found inside;

however, contraband was observed leading to a second search warrant wherein items

were seized.

{¶ 6} On December 22, 2020, the Perry County Grand Jury indicted appellant on

three counts of having weapons while under disability in violation of R.C. 2923.13 and

two counts of unlawful possession of a dangerous ordnance in violation of R.C. 2923.17.

Some of the counts carried forfeiture specifications pursuant to R.C. 2981.02 and

2981.04.

{¶ 7} On March 22, 2021, appellant filed a motion to suppress, claiming the

officers exceeded the scope of the search warrant and conducted an unjustified protective

sweep of the home. A hearing was held on April 15, 2021. By judgment entry filed May

28, 2021, the trial court denied the motion, finding sufficient probable cause existed for

the issuance of the warrant including the protective sweep, and the officers "acted in

objectively, reasonable reliance on the warrant."

{¶ 8} On August 24, 2021, appellant pled no contest to one of the weapons

counts and both unlawful possession counts, each with attendant forfeiture specifications.

By termination judgment entry filed September 1, 2021, the trial court sentenced appellant

to an aggregate term of eighteen months in prison.1

1Although not assigned as error, we note the termination judgment entry erroneously states appellant pled "guilty" instead of "no contest." The trial court found "it to be factually true that said crime was committed by the Defendant as alleged, accepted the Defendant's plea of 'Guilty' and found the Defendant 'Guilty' " of the three listed charges with the forfeiture specifications. Given that the trial court found appellant to be guilty, we find the trial court can correct this clerical error via nunc pro tunc entry on remand. State v. Ellis, 5th Dist. Fairfield No. 2020CA00004, 2020-Ohio-3910, ¶ 14-16; Crim.R. 32(C). Perry County, Case No. 21-CA-00014 4

{¶ 9} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶ 10} "THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION

TO SUPPRESS."

{¶ 11} In his sole assignment of error, appellant claims the trial court erred in

overruling his motion to suppress. We disagree.

{¶ 12} As stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio St.3d

165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12:

"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,

797 N.E.2d 71, ¶ 8. In ruling on a motion to suppress, "the trial 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." Id.,

citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). On

appeal, we "must accept the trial court's findings of fact if they are supported

by competent, credible evidence." Id., citing State v. Fanning, 1 Ohio St.3d

19, 20, 437 N.E.2d 583 (1982). Accepting those facts as true, we must then

"independently determine as a matter of law, without deference to the

conclusion of the trial court, whether the facts satisfy the applicable legal

standard." Id. Perry County, Case No. 21-CA-00014 5

{¶ 13} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690,

699, 116 S.Ct. 1657, 134 L.Ed.2d 94 (1996):

We therefore hold that as a general matter determinations of

reasonable suspicion and probable cause should be reviewed de novo on

appeal. Having said this, we hasten to point out that a reviewing court

should take care both to review findings of historical fact only for clear error

and to give due weight to inferences drawn from those facts by resident

judges and local law enforcement officers.

{¶ 14} The Fourth Amendment to the United States Constitution states: "The 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."

{¶ 15} A search warrant and its supporting affidavits enjoy a presumption of

validity. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

As held by the Supreme Court of Ohio in State v. George, 45 Ohio St.3d 325, 544 N.E.2d

640 (1989), syllabus:

1. In determining the sufficiency of probable cause in an affidavit

submitted in support of a search warrant, "[t]he task of the issuing Perry County, Case No. 21-CA-00014 6

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.)

2. In reviewing the sufficiency of probable cause in an affidavit

submitted in support of a search warrant issued by a magistrate, neither a

trial court nor an appellate court should substitute its judgment for that of

the magistrate by conducting a de novo determination as to whether the

affidavit contains sufficient probable cause upon which that court would

issue the search warrant. Rather, the duty of a reviewing court is simply to

ensure that the magistrate had a substantial basis for concluding that

probable cause existed. In conducting any after-the-fact scrutiny of an

affidavit submitted in support of a search warrant, trial and appellate courts

should accord great deference to the magistrate's determination of probable

cause, and doubtful or marginal cases in this area should be resolved in

favor of upholding the warrant. (Illinois v. Gates [1983], 462 U.S. 213, 103

S.Ct. 2317, 76 L.Ed.2d 527 followed.)

3. The Fourth Amendment exclusionary rule should not be applied

so as to bar the use in the prosecution's case-in-chief of evidence obtained

by officers acting in objectively reasonable reliance on a search warrant

issued by a detached and neutral magistrate but ultimately found to be Perry County, Case No. 21-CA-00014 7

unsupported by probable cause. (United States v. Leon [1984], 468 U.S.

897, 104 S.Ct. 3405, 82 L.Ed.2d 677, followed.)

{¶ 16} Appellant challenges the protective sweep portion of the search warrant. At

the outset, we note the subject warrant has been sealed to protect certain individuals.

We are mindful of this fact as we proceed with the opinion.

{¶ 17} The leading case on protective sweeps is Maryland v. Buie, 494 U.S. 325,

110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). In Buie at 327, the United States Supreme

Court explained: "A 'protective sweep' is a quick and limited search of premises, incident

to an arrest and conducted to protect the safety of police officers or others. It is narrowly

confined to a cursory visual inspection of those places in which a person might be hiding."

The Buie court stated at 333:

In the instant case, there is an analogous interest of the officers in

taking steps to assure themselves that the house in which a suspect is

being, or has just been, arrested is not harboring other persons who are

dangerous and who could unexpectedly launch an attack. The risk of

danger in the context of an arrest in the home is as great as, if not greater

than, it is in an on-the-street or roadside investigatory encounter. * * * A

protective sweep, in contrast, occurs as an adjunct to the serious step of

taking a person into custody for the purpose of prosecuting him for a crime.

Moreover, unlike an encounter on the street or along a highway, an in-home

arrest puts the officer at the disadvantage of being on his adversary's "turf." Perry County, Case No. 21-CA-00014 8

An ambush in a confined setting of unknown configuration is more to be

feared than it is in open, more familiar surroundings.

{¶ 18} "In balancing the Government's interests against an individual's Fourth

Amendment rights, it is a bedrock principle that 'it would be unreasonable to require that

police officers take unnecessary risks in the performance of their duties.' " U.S. v. Henry,

48 F.3d 1282, 1285 (D.C.Cir.1995), quoting Terry v. Ohio, 392 U.S. 1, 23, 88 S.Ct. 1868,

1881, 20 L.Ed.2d 889 (1968).

{¶ 19} On March 4, 2020, law enforcement officers executed a search warrant on

appellant's residence. He was inside along with drugs, drug manufacturing equipment,

firearms, and firearm parts. After the officers secured appellant, he bragged about how

he could have shot several of the SWAT officers as they were approaching his residence.

Affidavit at ¶ 3.

{¶ 20} On June 16, 2020, the Perry County Grand Jury indicted appellant on

several drug counts along with firearm specifications. Appellant was arraigned and

released on a personal recognizance bond. Affidavit at ¶ 4-5.

{¶ 21} Thereafter, it came to the attention of law enforcement officers that

appellant was building, buying, and selling firearms. In an investigation involving a

separate individual, officers observed photographs sent by appellant to this individual

depicting a semi-automatic handgun. One photograph depicted the same firearm with a

suppressor device or silencer affixed to the barrel. Another photograph showed appellant

holding a firearm while in his bedroom. A photograph of appellant obtained from another

source depicted appellant in possession of an assault rifle while dressed in tactical gear. Perry County, Case No. 21-CA-00014 9

It was discovered via the United States Postal Service that appellant was purchasing

items and receiving packages from a company that sold tactical gear and accessories

and parts for assault rifles and handguns. Affidavit at ¶ 7-13.

{¶ 22} On December 4, 2020, a warrant on complaint was filed against appellant

on weapons charges. Affidavit at ¶ 15. Also on said date, appellant was with a "known

associate" who was photographed holding a semi-automatic handgun along with a

threatening caption. Affidavit at ¶ 16.

{¶ 23} On December 8, 2020, a law enforcement officer with the Perry County

Sheriff's Office, who serves as the Agent in Charge of the Central Ohio Drug Enforcement

Task Force - Perry County Operations (affiant herein), sought a search warrant for the

East Lake Street residence and unattached garage for appellant's person to serve upon

him the arrest warrant. Affidavit at ¶ 1, 18. The affiant further requested authorization to

conduct a protective sweep of the entire residence even if appellant had been located

and apprehended. This request was made based upon the stated evidence of

tactical/ballistic equipment and firearms in the possession of appellant and his known

associate, coupled with the threatening March statement and the threatening caption on

the photograph. The affiant stated by conducting the protective sweep, "it will collectively

maintain the safety of the law enforcement officers as well as the general public from

persons who may launch an attack on unsuspecting officers should they be required to

discontinue the search of the home after Stewart is apprehended." Affidavit at ¶ 19. A

judge reviewed the affidavit and determined there was probable cause for a search to be

made of the East Lake Street residence and unattached garage for appellant's person.

The judge also found sufficient probable cause to authorize the protective sweep of the Perry County, Case No. 21-CA-00014 10

residence even though appellant had been apprehended. The judge authorized the

protective sweep "to ensure the safety of the law enforcement officers and the public at

whole."

{¶ 24} Based upon the information provided by the affiant in this case, we find a

substantial basis for the finding of probable cause to issue a pre-authorized protective

sweep. The affidavit stated appellant had bragged that he could have shot several SWAT

officers during his March arrest. He was known to possess firearms in his home. He was

known to associate with an individual who also possessed firearms and wrote a

threatening caption on a photograph. The judge "had reasonable and reliable information

upon which to determine that there was a reasonable probability that someone may be

present in the residence that presented a risk of harm to the officers executing the

warrant." Appellee's April 28, 2021 Memorandum Contra at 3-4. In conducting our after-

the-fact scrutiny of the affidavit submitted in support of the search warrant, we accord

great deference to the judge's determination of probable cause and uphold the warrant.

{¶ 25} The actions of the officers in going to appellant's home, placing him under

arrest, and conducting the protective sweep of the home were done under the authority

of the search warrant. The officers acted within the scope of the warrant.

{¶ 26} Upon review, we find the trial court did not err in overruling appellant's

motion to suppress.

{¶ 27} The sole assignment of error is denied. Perry County, Case No. 21-CA-00014 11

{¶ 28} The judgment of the Court of Common Pleas of Perry County, Ohio is

affirmed, but the matter is remanded to said court for the issuance of a nunc pro tunc

termination judgment entry to reflect that appellant pled "no contest."

By Wise, Earle, P.J.

Wise, John, J. and

Delaney, J. concur.

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