State v. Kosla , 2014 Ohio 1381 ( 2014 )

[Cite as State v. Kosla, 2014-Ohio-1381.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant, : No. 13AP-514
No. 13AP-517
v. : (C.P.C. No. 12CR-07-3526)
Dana Kosla, : (REGULAR CALENDAR)
Defendant-Appellee. :
State of Ohio, :
Plaintiff-Appellant, : No. 13AP-515
No. 13AP-516
v. : (C.P.C. No. 12CR-07-3525)
Alexander Edds, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on March 31, 2014
Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
appellant.
Yeura R. Venters, Public Defender, and Timothy E. Pierce, for
appellee Dana Kosla.
Roger M. Koeck, for appellee Alexander Edds.
APPEALS from the Franklin County Court of Common Pleas
TYACK, J.
{¶ 1} The State of Ohio is appealing from the trial court's granting of a motion to
suppress. The State assigns four errors for our consideration:
Nos. 13AP-514, 13AP-517, 13AP-515 & 13AP-516 2
[I.] THE TRIAL COURT ERRED IN GRANTING THE
MOTION TO SUPPRESS WHEN THERE WAS A
SUBSTANTIAL BASIS FOR THE ISSUANCE OF THE
SEARCH WARRANT.
[II.] THE TRIAL COURT ERRED IN GRANTING THE
MOTION TO SUPPRESS WHEN THE SEARCH SHOULD
HAVE BEEN UPHELD UNDER THE GOOD-FAITH
EXCEPTION.
[III.] THE TRIAL COURT ERRED IN RELYING ON THE
OHIO CONSTITUTION TO GRANT THE MOTION TO
SUPPRESS, SINCE THE OHIO SUPREME COURT HELD
IN STATE V. LINDWAY, 131 Ohio St. 166, 2 N.E.2d 490(1936), THAT THERE IS NO EXCLUSIONARY RULE FOR
VIOLATING ARTICLE I, SECTION 14, OF THE OHIO
CONSTITUTION.
[IV.] THE TRIAL COURT ERRED IN DISMISSING THE
CASE FOR FAILURE TO PROSECUTE WHEN THE COURT
HAD SUPPRESSED THE EVIDENCE AND THE
PROSECUTION HAD TIMELY FILED A NOTICE OF
APPEAL REGARDING THE ORDER OF SUPPRESSION.
{¶ 2} The foremost limitations on the power of law enforcement officials to
conduct searches and seizures is the Fourth Amendment to the United States
Constitution. The Fourth Amendment reads:
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.
{¶ 3} The first problem with the search warrant issued in this case is its lack of
specificity. The officer who swore out the affidavit to obtain a search warrant indicated
that controlled substances were being kept in "a certain building or room or vehicle
known as the residence of Alexander Edds."
{¶ 4} Later, the affidavit focuses on 4142 Greensbury Drive, New Albany, Ohio, as
the location to be searched. The affidavit indicates that Alexander Edds was identified as
a person of interest involving the cultivation of marijuana sometime after September
2009. The affidavit does not state who so identified Edds.
Nos. 13AP-514, 13AP-517, 13AP-515 & 13AP-516 3
{¶ 5} The officer indicated that Edds was seen going into a store which sells
gardening materials "on approximately two occasions." Edds apparently bought potting
soil and "other unidentified material(s)." This apparently happened on September 21,
2009, over one year before the search. A second trip to the garden store occurred the
month before the search. Edds carried something unknown into the store and carried
something unknown out of the store.
{¶ 6} The officer indicated "[a] records check revealed that Alexander Edds is
currently using 4142 Greensbury Drive, New Albany, Ohio 43214 as his current address."
What records were checked is not indicated. Another person owns 4142 Greensbury
Drive.
{¶ 7} In May 2011, police subpoenaed the records with American Electric Power
and verified that Edds has an account for electrical service at 4142 Greensbury Drive. His
account reflects the use of more electricity at 4142 Greensbury Drive than three other
houses in the neighborhood and more than prior occupants of the residence.
{¶ 8} The officer then added:
Information obtained from a central Ohio law enforcement
agency revealed that Edds has transported marijuana [in]
the 2005 Mercedes and has been observed carrying large
amounts of U.S. currency on his person.
A criminal history check of Alexander revealed a prior arrest
for receiving stolen property, possession of criminal tools
and criminal trespass by Westerville Police in 2003.
{¶ 9} The latter paragraph could be construed as the officer trying to throw
information into the search warrant affidavit which had no value to a magistrate being
requested to issue a warrant. The fact that eight years earlier Edds was charged with a
theft-related crime and arrested but apparently never convicted is no indication that Edds
was doing anything illegal in May 2011.
{¶ 10} The claims that someone else in law enforcement said Edds has transported
marijuana of an unknown amount in a Mercedes and was seen with large amounts of cash
at some unknown time does not assist the issuing magistrate in knowing that illegal
activity is currently happening at a specific location. At its core, the affidavit indicates at
most that Edds has purchased gardening supplies and has ties to a house which uses more
Nos. 13AP-514, 13AP-517, 13AP-515 & 13AP-516 4
electricity than three other houses in the neighborhood and more electricity than was
used at an earlier time at that location.
{¶ 11} The information in the affidavit does not approach the level of information
required to allow police officials to enter a private residence and conduct a complete
search. If there "was a substantial basis for the issuance of the search warrant" as the
State now alleges, that substantial basis was not revealed in the affidavit used to obtain
the warrant. The common pleas court judge who reviewed the warrant correctly saw this
and granted the motion to suppress.
{¶ 12} The first assignment of error is overruled.
{¶ 13} The State of Ohio next argues that the search should have been upheld
based upon the so-called good-faith exception set forth in United States v. Leon, 468 U.S.
897 (1984).
{¶ 14} As a general rule, Leon has been applied in situations where a police officer
was not aware that he or she lacked what was required to obtain a search warrant. For
instance, in Illinois v. Krull, 480 U.S. 340 (1987), the police relied upon a statute which
was later found to be unconstitutional when obtaining a warrant. In Arizona v. Evans,
514 U.S. 1 (1995), police relied upon an arrest warrant which turned out to no longer be
valid, although electronic records indicated it was valid when the arrest was made.
{¶ 15} The officer in the search of 4142 Greensbury Drive was on notice that he did
not have the incriminating information necessary to search a private residence owned by
someone other than Edds. The fact Edds may have liked to garden and the fact that Edds
had an account with the electric company, which indicated that the residence used more
electricity than other houses in the neighborhood, was not enough to justify the intrusion
which accompanies a full police search.
{¶ 16} Because the basis in fact was so lacking, the officer threw in the claims that
Edds had theft-related charges filed against him eight years earlier, which led to no
convictions. The officer also threw in the claim that someone in law enforcement stated
Edds carried a large amount of cash on some occasion. This was not a criminal offense.
The officer also threw in the claim that Edds at some time in the last six or seven years
had some marijuana in a vehicle he owned, whether it was a single joint or a larger
quantity was not indicated.
Nos. 13AP-514, 13AP-517, 13AP-515 & 13AP-516 5
{¶ 17} This is simply not a situation which the officer's conduct is rescued by the
good-faith exception. The officer apparently knew he lacked probable cause to search a
private residence.
{¶ 18} The second assignment of error is overruled.
{¶ 19} In the third assignment of error, the State argues that State v. Lindway, 131
Ohio St. 166, a 1936 case from the Supreme Court of Ohio is binding precedent that the
exclusionary rule does not apply to searches and seizures found to be in violation of the
Ohio Constitution.
{¶ 20} Mapp v. Ohio, 367 U.S. 643 (1961), was not decided until 25 years later.
The exclusionary rule did not become the law of the land until then. In intervening cases
decided by the Supreme Court of Ohio, the applicability of the exclusionary rule has been
assumed and applied. See State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, for
instance. See also State v. Robinette, 80 Ohio St.3d 234 (1997). Lindway has been
expressly overruled in the context of violations of the Fourth Amendment to the U.S.
Constitution and by implication for violations of the Ohio Constitution.
{¶ 21} The third assignment of error is overruled.
{¶ 22} Turning to the fourth assignment of error, the trial court judge was
premature in dismissing the charges before the State had its opportunity to pursue its
direct appeal. However, we note that, in pursuing its appeal, the State has certified that
the trial court's granting of the motion to suppress has rendered the State's proof with
respect to the pending charges so weak in its entirety that any reasonable possibility of
effective prosecution has been destroyed. See Crim.R. 12(K)(2).
{¶ 23} We also note the provision of Crim.R. 12(K) that, "[i]f an appeal from an
order suppressing or excluding evidence pursuant to this division results in an affirmance
of the trial court, the state shall be barred from prosecuting the defendant for the same
offense or offenses except upon a showing of newly discovered evidence that the
state could not, with reasonable diligence, have discovered before filing of the notice of
appeal."
{¶ 24} As a result, we sustain the fourth assignment of error and remand the case
to the trial court for the State to show that it has acquired such newly discovered evidence
or that the trial court was not in error dismissing the charges.
Nos. 13AP-514, 13AP-517, 13AP-515 & 13AP-516 6
{¶ 25} In review, we overrule the first, second, and third assignments of error. We
sustain the fourth assignment of error and remand the case for such further proceedings
as are consistent with Crim.R. 12(K).
Judgment affirmed in part and reversed
in part; remanded for further proceedings.
CONNOR, J., concurs.
SADLER, P.J., concurs in part and dissents in part.
SADLER, P.J., concurring in part and dissenting in part.
{¶ 26} I agree that the fourth assignment of error should be sustained because the
state had an absolute right to appeal from the adverse decision rendered on the motion to
suppress. State v. Fraternal Order of Eagles Aerie 0337 Buckeye, 58 Ohio St.3d 166, 168
(1991). Therefore, I concur in part. However, I disagree with the majority's decision to
overrule the first assignment of error and to issue a remand with instructions. Therefore,
I respectfully dissent in part.
{¶ 27} This case centers on the suppression of evidence, inter alia, 132 marijuana
plants, scales, and incriminating statements, obtained after the execution of a search
warrant. The warrant issued by the Franklin County Municipal Court was supported by
the affidavit of Westerville Police Detective Russell Moore in his capacity as a Task Force
Officer for the Drug Enforcement Administration ("DEA"). The majority discusses facts it
finds pertinent and reproduces select portions of Detective Moore's affidavit. However,
when determining the sufficiency of probable cause from an affidavit submitted to
support a search warrant, the issuing judge must look to the totality of the circumstances
set forth in the affidavit submitted and determine whether probable cause exists that
contraband or evidence of a crime would be found in a particular place. State v. Garner,
74 Ohio St.3d 49, 62 (1995). By contrast, a reviewing court should not conduct a de novo
review of a judge's determination of probable cause, but review the warrant to ensure that
the judge had a substantial basis for concluding that probable cause existed, according
"great deference to the judge's determination of the existence of probable cause." Id. at
62. Given the applicable standards of review, including the requirement that the issuing
judge look to the totality of the circumstances presented in the affidavit, I produce
Detective Moore's affidavit in its entirety.
Nos. 13AP-514, 13AP-517, 13AP-515 & 13AP-516 7
{¶ 28} The affidavit states Detective Moore has been employed as a police officer
by the city of Westerville since 1989 and is currently assigned to the DEA conducting
various narcotics investigations. The affidavit states Detective Moore "has participated in
numerous search warrants involving the indoor growing of marijuana." Additionally, the
affidavit provides:
In September 2009 of 2009, the DEA Columbus District
Office began conducting an investigation regarding
marijuana cultivation in Columbus, Ohio. During the course
of this investigation Alexander Edds was identified as a
person of interest involving the cultivation of marijuana.
Edds has been observed on approximately two occasions at
the Garden Indoors/Indoor Gardens located at 4720
Indianola Avenue in Columbus, Ohio. Garden Indoors sells
plant growing material which could be utilized for the
cultivation of marijuana. Edds has been observed loading
what appeared to be potting soil and other unidentified
material(s) into his vehicle. On both occasions Edds was
accompanied by an unknown female.
On September 21, 2009 DEA Special Agent (SA) Todd Yant
observed a white Audi with Ohio registration EVS 3929
arrive in the parking lot of the Indoor Gardens. According to
the Ohio Attorney General "OHLEG" web page, Alexander
Edds, 6366 Old 3C Highway, Westerville is the owner of the
Audi. On this occasion SA Yant observed Edds place potting
soil and a large bag of possible chemicals into the rear of his
vehicle.
On April 27, 2011 SA Yant observed a 2005 silver Mercedes
with Ohio registration FDB 6272 arrive in the parking lot of
the Indoor Gardens. According to the Ohio Attorney General
"OHLEG" web page, Alexander Edds, 6636 Old 3C Highway
is the registered owner of this vehicle. SA Yant observed
Edds and an unknown white female exit the vehicle and
enter the store. Edds was carrying an unknown item into the
store. Approximately five minutes Edds and the female
exited the store. Edds was carrying an unknown item. Edds
and the female he had arrived with entered the vehicle and
left the area.
A records check revealed that Alexander Edds is currently
using 4142 Greensbury Drive, New Albany, Ohio 43214 as his
current address. The Franklin County Auditors web page
Nos. 13AP-514, 13AP-517, 13AP-515 & 13AP-516 8
found that Jeffrey Stanley is the listed owner of 4142
Greensbury Drive.
On May 3, 2011 a subpoena was issued to American
Electrical Power (AEP) for electrical consumption of 4142
Greensbury Drive, New Albany, Ohio as well as three other
nearby residences. AEP records indicate that Alexander
Edds has active electrical service at 4142 Greensbury Drive,
New Albany, Ohio since January 11, 2011. According to the
AEP return of the electrical consumption subpoena showed
that from February 2011 to May 3rd 2011 the address 4142
Greensbury Drive averaged 3920 kilowatt hours per month.
As of May 3rd 2011 the electrical consumption of this
address was 5199 kilowatt hours. A comparison of electrical
consumption of similar surrounding residences showed the
following:
Date Address Kilowatt Hours Monthly Ave
(kwh) (Feb-May)
05-03-2011 4142 Greensbury Dr. 5199 3920
05-03-2011 4166 Greensbury Dr. 635 612
05-03-2011 4179 Greensbury Dr. 968 894
05-03-2011 4187 Greensbury Dr. 329 374
Additionally, from September 2010 to December 2011 the
prior occupants of 4142 Greensbury Drive, New Albany, Ohio
averaged 1078 kilowatt hours per month.
Information obtained from a central Ohio law enforcement
agency revealed that Edds has transported marijuana the
2005 Mercedes and has been observed carrying large
amounts of U.S. currency on his person.
A criminal history check of Alexander revealed a prior arrest
for receiving stolen property, possession of criminal tools
and criminal trespass by Westerville Police in 2003.
(Sic passim.)
{¶ 29} From this affidavit, the issuing judge was 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.' " State v. George, 45 Ohio St.3d 325 (1989), paragraph one of
Nos. 13AP-514, 13AP-517, 13AP-515 & 13AP-516 9
the syllabus, quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983). A reviewing court
does not conduct a de novo review of the issuing judge's determination of probable cause,
but reviews the warrant "simply to ensure that the magistrate had a substantial basis for
concluding that probable cause existed," according "great deference to the magistrate's
determination of probable cause" and resolving "doubtful or marginal cases * * * in favor
of upholding the warrant." Id. at paragraph two of the syllabus.
{¶ 30} Probable cause means less evidence than would justify condemnation, so
that only the "probability, and not a prima facie showing, of criminal activity is the
standard of probable cause." (Internal quotations and emphasis omitted.) Id. at 329. In
determining whether probable cause supports a search warrant, the issuing judge
generally is confined to the averments contained in the supporting affidavit. State v.
Yanowitz, 67 Ohio App.2d 141, 144 (8th Dist.1980).
{¶ 31} Contrary to the majority's conclusion that this affidavit indicates "at most"
that Edds has purchased gardening supplies and has ties to a house which uses more
electricity than others, I believe that, based on the totality of the circumstances, this
affidavit established probable cause to support the search warrant issued in this case.
(Majority, ¶ 10.)
{¶ 32} The information pertaining to Edds being identified as a "person of interest
involving the cultivation of marijuana" arose from an investigation conducted by the DEA
Columbus District Office. The information regarding Edds being at and carrying items
out of a store called Indoor Gardens on September 21, 2009 and April 27, 2011 was
provided by DEA Special Agent Todd Yant. The information regarding Edds being
observed carrying large amounts of United States currency on his person and Edds having
transported marijuana in the 2005 Mercedes in which he was seen at Indoor Gardens was
provided by a central Ohio law enforcement agency.1 The majority discounts most of this
information because there are no specifics regarding the identification of the person that
provided the information. As the affidavit indicates, this information was the result of an
investigation of the DEA Columbus District Office and observations of a central Ohio law
enforcement agency. In general, " 'another law enforcement officer is a reliable source
1 Detective Moore's affidavit states that, on April 27, 2011, DEA Special Agent Yant observed Edds in a 2005
silver Mercedes at Indoor Gardens. The affidavit further states that a separate law enforcement agency
relayed "that Edds has transported marijuana in the 2005 Mercedes."
Nos. 13AP-514, 13AP-517, 13AP-515 & 13AP-516 10
and . . . consequently no special showing of reliability needs to be made as a part of the
probable cause determination.' " United States v. Lapsins, 570 F.3d 758, 764 (6th
Cir.2009), quoting 2 Wayne R. LaFave, Search and Seizure § 3.5(a) (4th ed.2008).
{¶ 33} Additionally, as stated in Gates, the observations regarding "particularized
suspicion" are also applicable to the probable-cause standard:
The process does not deal with hard certainties, but with
probabilities. Long before the law of probabilities was
articulated as such, practical people formulated certain
common-sense conclusions about human behavior; jurors as
factfinders are permitted to do the same – and so are law
enforcement officers. Finally, the evidence thus collected
must be seen and weighed not in terms of library analysis by
scholars, but as understood by those versed in the field of
law enforcement.
Gates at 231, quoting United States v. Cortez, 449 U.S. 411, 418 (1981). Detective Moore's
affidavit indicates the culmination of evidence in the DEA investigation led to Edds being
named a person of interest in a marijuana cultivation operation. The affidavit also
indicates another law enforcement agency in central Ohio was aware of Edds transporting
marijuana in the car in which he was seen at Indoor Gardens on April 27, 2011, and the
agency was also aware of Edds carrying large amounts of United States currency on his
person. While more detail could have been presented, I disagree that the lack of detail
here requires a finding that the judge issuing this search warrant should have rejected all
of this information.
{¶ 34} The majority also rejects the September 2009 characterization of Edds as a
"person of interest" and the September 2009 trip of Edds to Indoor Gardens seemingly
because said information is stale since the warrant was not sought until May 2011.
Whether information is stale depends on the inherent nature of the crime and, in the
context of a search warrant, turns on several factors, such as " 'the character of the crime
(chance encounter in the night or regenerating conspiracy?), the criminal (nomadic or
entrenched?), the thing to be seized (perishable and easily transferable or of enduring
utility to its holder?), [and] the place to be searched (mere criminal forum of convenience
or secure operational base?).' " United States v. Hammond, 351 F.3d 765, 771-72 (6th
Cir.2003), quoting United States v. Greene, 250 F.3d 471, 480-81 (6th Cir.2001). In the
context of drug crimes, information goes stale very quickly "because drugs are usually sold
Nos. 13AP-514, 13AP-517, 13AP-515 & 13AP-516 11
and consumed in a prompt fashion." United States v. Frechette, 583 F.3d 374, 378 (6th
Cir.2009).
{¶ 35} However, "[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." United States v. Thomas, 605 F.3d 300, 310 (6th Cir.2010), citing
United States v. Greany, 929 F.2d 523, 525 (6th Cir.1991). Furthermore, Detective
Moore's affidavit contained statements regarding an April 27, 2011 trip to Indoor Gardens
in a 2005 Mercedes in which he has transported marijuana. Additionally, Detective
Moore's affidavit contained February through May 2011 electricity use records from
appellees' residence showing significantly higher electricity consumption than that of
surrounding properties as well as the prior occupants. Information from an informant
that is otherwise stale may be " 'refreshed' " if the affidavit contains " 'recent information
[that] corroborates otherwise stale information.' " Id. at 310, quoting United States v.
Spikes, 158 F.3d 913, 924 (6th Cir.1998) (recent electricity use records refreshed eight-
month old tip by an anonymous informant that the defendant was growing marijuana);
State v. Cook, 5th Dist. No. 2010-CA-40, 2011-Ohio-1776, ¶ 23 (two-year old utility usage
information properly relied on in marijuana grow case as staleness evaluated in light of
particular facts, nature of criminal activity, and property sought); Greany at 525 (nearly
two-year old information on marijuana growing operation upheld, staleness evaluated in
light of particular facts of case, and nature of criminal activity and property sought); State
v. Hoppe, 223 Wis.2d 799 (1998) (though over one-year old, informant's tip not stale
where the agent's review of electrical consumption records supported the inference of
marijuana cultivation because "[m]arijuana growing is of a continuous nature, and,
therefore, greater lapses of time are justified").
{¶ 36} The majority also dismisses the information pertaining to the trips to
Indoor Gardens and the electricity use records because there are a number of innocent
explanations regarding each of these pieces of information. While it is legal to visit and
make purchases at the business in question and there are legal explanations for sharp
increases in electricity use, such is not dispositive. " '[I]nnocent behavior frequently will
provide the basis for a showing of probable cause[.] . . . In making a determination of
probable cause the relevant inquiry is not whether particular conduct is "innocent" or
Nos. 13AP-514, 13AP-517, 13AP-515 & 13AP-516 12
"guilty," but the degree of suspicion that attaches to particular types of non-criminal
acts.' " United States v. Hoang, 487 Fed.Appx. 239, 244 (6th Cir.2012), quoting Gates at
243, fn. 13. In my view, this affidavit contains both criminal and non-criminal acts that
collectively provide a degree of suspicion that satisfies the probable cause requirement for
the judge to have issued this warrant.
{¶ 37} As this court has held, electrical usage data is a relevant factor in
determining probable cause. State v. Gantz, 106 Ohio App.3d 27 (10th Dist.1995); State
v. Liebold, 2d Dist. No. 25124, 2013-Ohio-1371; Thomas; Hoang; State v. Waters, 2008
Minn. App. Unpub LEXIS 711 (the association of high electricity usage with a marijuana-
growing operation is not only common knowledge to law enforcement involved in such
investigations but also has been recognized by courts as a fact that supports a finding of
probable cause for a search warrant). See, e.g., United States v. Olson, 21 F.3d 847, 850
(8th Cir.1994) (affirming finding of probable cause for search "notwithstanding the lack of
a basis of knowledge for the informants' information" where officers obtained records
showing that defendant's electrical use was abnormally high); Hoppe (as a matter of
common knowledge, the issuing judge could connect increased electrical consumption
with the presence of special grow lights supporting a marijuana grow).
{¶ 38} The electricity use records indicate that, as of May 3, 2011, Edds' address
consumed anywhere from five to fifteen times more electricity than that of surrounding
properties. Additionally, the records indicate that the average monthly electricity
consumption of Edds' address from February to May 2011 was anywhere from four to ten
times greater than the surrounding properties during that same time frame. The affidavit
also provides that the monthly average electricity use of the prior occupants at Edds'
address, specifically from September to December 2011, was 1078 kilowatt hours. Thus,
in the five months since Edds activated electrical service at his address, the monthly
average electricity consumption was over three times that of the prior occupants at that
same address. While I do not suggest that there are no innocent explanations for such
electricity use, however, when coupled with a DEA investigation into a marijuana
cultivation operation that led to Edds being named a person of interest and an additional
law enforcement agency's observation that Edds has previously transported marijuana, I
find the electricity use records significant.
Nos. 13AP-514, 13AP-517, 13AP-515 & 13AP-516 13
{¶ 39} When viewed in a vacuum, each element of the affidavit is less persuasive or
even insufficient by itself to support probable cause. However, when viewed together and
in its entirety, I believe the totality of the circumstances establishes a "fair probability that
contraband or evidence" of marijuana possession and cultivation would be found at 4142
Greensbury Drive. State v. Allen, 10th Dist. No. 08AP-264, 2008-Ohio-6916, ¶ 14,
quoting Gates at 238 (a judge properly issues a search warrant if the totality of the
circumstances establish a fair probability that contraband or evidence of a crime will be
found in a particular place). In its entirety, Detective Moore's affidavit established that in
September 2009, during a DEA investigation into marijuana cultivation, Edds was named
a person of interest. Also at this time, Edds was observed entering Indoor Gardens,
which, according to the affidavit, is a business that sells plant growing materials which
could be utilized for the cultivation of marijuana. Nineteen months later, Edds was
observed at Indoor Gardens in the same 2005 Mercedes that, according to an additional
law enforcement agency, Edds had used to transport marijuana. Also, according to the
central Ohio law enforcement agency, Edds has been observed carrying large amounts of
United States currency on his person. Lastly, electricity consumption records from 4142
Greensbury Drive indicated that, from February to May 2011, the residence had used
three times the monthly electricity as the prior occupants and four to ten times the
electricity as the surrounding properties in that same time frame.
{¶ 40} Any staleness in the 2009 information was refreshed by the recent 2011
information pertaining to Edds and his activities. When considered in its totality,
Detective Moore's affidavit contained information that distinguished him from one that
"may have liked to garden" or an individual lawfully growing vegetation indoors and also
provided a substantial basis for the issuing judge to conclude there was a fair probability
that marijuana or related paraphernalia would be found at Edds' residence. (Majority, ¶
14.) An affidavit is to be judged on the adequacy of what it contains, not on what it lacks
or on what a critic might say should have been added. Thomas; United States v. Allen,
211 F.3d 970, 975 (6th Cir.2000). A reason for avoiding a "hypertechnical or rigorous
standard for reviewing a search warrant is that a finding of insufficiency of an affidavit
leads to suppression of evidence. The suppression of evidence seized pursuant to a search
warrant should not be treated lightly; in suppressing evidence the truth is suppressed, and
Nos. 13AP-514, 13AP-517, 13AP-515 & 13AP-516 14
an investigation into a crime is impeded." United States v. Giacalone, 541 F.2d 508, 514
(6th Cir.1975), citing McCray v. Illinois, 386 U.S. 300, 307 (1967).
{¶ 41} The duty of the official reviewing the warrant is to make a practical,
common sense determination, based on the totality of the circumstances, regarding
whether there is a fair probability that contraband or evidence of a crime will be found at
a particular place. Reviewing courts are to review the warrant " 'simply to ensure that the
magistrate had a substantial basis for concluding that probable cause existed.' " State v.
Eal, 10th Dist. No. 11AP-460, 2012-Ohio-1373, ¶ 9, quoting George at paragraph two of
the syllabus.
{¶ 42} Undoubtedly, "[r]easonable minds frequently may differ on the question
whether a particular affidavit establishes probable cause," as is exemplified herein where
the reviewing judge's determination of probable cause differed from that of the judge
issuing the warrant. United States v. Leon, 468 U.S. 897, 914 (1984). Even if viewed as
marginal or doubtful, upon thoughtful review of the affidavit, the law concerning probable
cause and the issuance of search warrants thereon, I do not conclude this affidavit is so
lacking such that deference should not be accorded to the issuing judge's determination of
probable cause or that this case should not be resolved in favor of upholding the warrant.
A probable cause determination only depends on the fair probability of criminal activity,
not a prima facie demonstration of criminal activity. Allen at ¶ 28.
{¶ 43} For all these reasons, I conclude Detective Moore's affidavit established
probable cause to support the search warrant issued for 4142 Greensbury Drive.
Therefore, I conclude the trial court erred in suppressing the 132 marijuana plants and
other evidence obtained as a result of that search and would sustain appellant's first
assignment of error.
{¶ 44} Because I would sustain appellant's first and fourth assignments of error,
appellant's second and third assignments of error would be rendered moot and I would
not address the same. Accordingly, I respectfully concur in part and dissent in part.
___________________