State v. Wildman

923 N.E.2d 1240, 185 Ohio App. 3d 346
CourtOhio Court of Appeals
DecidedDecember 31, 2009
DocketNo. WD-08-061
StatusPublished
Cited by5 cases

This text of 923 N.E.2d 1240 (State v. Wildman) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wildman, 923 N.E.2d 1240, 185 Ohio App. 3d 346 (Ohio Ct. App. 2009).

Opinion

Abood, Judge.

{¶ 1} This is an appeal from a judgment of the Wood County Court of Common Pleas in which appellant, William Wildman, was found guilty on one count of illegal assembly or possession of chemicals for the manufacture of drugs, in violation of R.C. 2925.041(A), a felony of the third degree.

{¶ 2} In support of his appeal, appellant sets forth two assignments of error.

FIRST ASSIGNMENT OF ERROR

{¶ 3} “The trial court erred to the prejudice of appellant by denying his motion to suppress evidence and in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 14 of the Constitution of the State of Ohio.”

[350]*350SECOND ASSIGNMENT OF ERROR

{¶ 4} “The permissions to search granted by appellant and his wife should be found involuntary under the totality of the circumstances, and evidence gathered from that search should have been suppressed.”

{¶ 5} The facts that are relevant to the issues raised on appeal are as follows. On July 12, 2007, officers from the Ohio Department of Natural Resources, Division of Wildlife, obtained a warrant to search appellant’s residence, at 126 Venango Street, Cygnet, Ohio, for evidence of violations of various fishing laws. During the search, they discovered what appeared to be marijuana plants located in various parts of the residence. While still in appellant’s home, the officers contacted the Wood County Deputy Sheriffs Department and advised them of the suspected marijuana. Sheriffs deputies arrived on the scene and presented appellant with a permission-to-search form and a waiver-of-Miranda-rights form. Appellant signed both forms.

{¶ 6} On August 2, 2007, appellant was indicted by the Wood County Grand Jury on a single count of illegal assembly or possession of chemicals for the manufacture of drugs, in violation of R.C. 2925.041(A), a felony of the third degree. At arraignment, appellant pleaded not guilty. On December 10, 2007, appellant filed a motion to suppress, which, following a hearing on March 4, 2008, was found not well taken and was denied. On July 8, 2008, appellant appeared and entered a plea of no contest to the single count in the indictment. On September 2, 2008, appellant was sentenced to three years of community control, a mandatory fine of $5,000, and 300 hours of community service.

{¶ 7} Appellant argues in support of his first assignment of error that the trial court erred, in violation of his constitutional rights, when it denied his motion to suppress. Specifically, appellant argues that the affidavit upon which the search warrant was issued was fatally flawed and the evidence seized following the execution of the warrant should have been suppressed.

{¶ 8} The Fourth Amendment to the United States Constitution, applied to the states by way of the Fourteenth Amendment, provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Section 14, Article I of the Ohio Constitution contains an almost identical provision.

{¶ 9} “A neutral and detached magistrate may issue a search warrant only upon the finding of probable cause.” State v. Gilbert, 4th Dist. No. 06CA3055, 2007-Ohio-2717, 2007 WL 1600367, ¶ 13, citing United States v. Leon (1984), 468 [351]*351U.S. 897, 914-915,104 S.Ct. 3430, 82 L.Ed.2d 677; Crim.R. 41(C). An affidavit in support of a search warrant must “particularly describe the place to be searched, name or describe the property to be searched for and seized, state substantially the offense in relation thereto, and state the factual basis for the affiant’s belief that such property is there located.” Crim.R. 41(C).

{¶ 10} In evaluating an affidavit for the sufficiency of probable cause, an issuing magistrate must apply a “totality-of-the-circumstances” test. State v. George (1989), 45 Ohio St.3d 325, 544 N.E.2d 640, paragraph one of the syllabus, citing Illinois v. Gates (1983), 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527. The magistrate must “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.” Id., quoting Gates at 238-239,103 S.Ct. 2317.

{¶ 11} In George, the Supreme Court of Ohio articulated the standard of review for a determination of probable cause based on an affidavit in support of a search warrant. A reviewing court should “ensure that the magistrate had a substantial basis for concluding that probable cause existed” and should not substitute its judgment for that of the magistrate. Id., at paragraph two of the syllabus, citing Gates. The reviewing court “should accord great deference to the magistrate’s determination of probable cause, and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant.” Id.

{¶ 12} In this case, appellant argues that the affidavit in support of the search warrant does not satisfy the probable-cause requirement for two reasons: (1) nothing in the affidavit indicates how appellant’s address was obtained or confirmed and (2) the information contained in the affidavit was stale. This court will first examine appellant’s assertion that nothing in the affidavit indicates how his home address, at 126 Venango Street, Cygnet, Ohio, was obtained or confirmed.

{¶ 13} In obtaining the search warrant, the officers presented a ten-page affidavit, which set forth in considerable detail an account of their year-long investigation into appellant’s fishing activities. As to the address to be searched, however, the affidavit states that the items they were searching for “are being kept in, 126 Venango St. Cygnet, Ohio (a blue two story home with white trim) in that portion of the premises of which William D. Wildman, has possession, control or use,” and later that “in the residence, including cartilage, outbuildings and vehicles associated with the premises, commonly known as 126 Venango St., Cygnet, Ohio (a blue two story home with a white trim) there is now being concealed certain property * * *.”

[352]*352{¶ 14} This court notes that at the hearing on the motion to suppress, there was testimony that the officers had confirmed appellant’s address by running appellant’s license plate and by driving by the address and seeing appellant’s vehicles at the property. For some reason, however, that information was not set forth in the affidavit that was used to obtain the search warrant.

{¶ 15} Upon review of the affidavit in its entirety, this court can conclude only that although the information contained in the affidavit particularly described the place to be searched, it failed to provide any information as to how appellant’s address was obtained or confirmed and, therefore, failed to provide the factual basis for the affiant’s belief that contraband would be located at that place.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Wallace
2020 Ohio 4168 (Ohio Court of Appeals, 2020)
State v. Dockum
2020 Ohio 4163 (Ohio Court of Appeals, 2020)
State v. Casi
2020 Ohio 3063 (Ohio Court of Appeals, 2020)
State v. Adams
2017 Ohio 7743 (Ohio Court of Appeals, 2017)
State v. Kubat
2015 Ohio 4062 (Ohio Court of Appeals, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
923 N.E.2d 1240, 185 Ohio App. 3d 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wildman-ohioctapp-2009.