State v. Brown , 2017 Ohio 8315 ( 2017 )

[Cite as State v. Brown, 2017-Ohio-8315.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105202
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAMES N. BROWN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-603155-A
BEFORE: Stewart, J., Kilbane, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: October 26, 2017
ATTORNEY FOR APPELLANT
Mary Catherine Corrigan
4403 St. Clair Avenue
Cleveland, OH 44103
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
Kevin E. Bringman
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} Citing information supplied by an informant and drug-related items found in
a trash pull, the police obtained a warrant to search the house of defendant-appellant
James N. Brown. That search yielded evidence leading to Brown’s being charged with
counts of trafficking, drug possession, having a weapon while under disability, and
possession of criminal tools. Brown filed a motion to suppress the evidence seized in the
search on grounds that there was no probable cause to issue the search warrant. The
court denied the motion to suppress and Brown pleaded no contest to all counts. Brown
appealed, requesting that this appeal be placed on this court’s accelerated calendar
pursuant to App.R. 11.1 and Loc.App.R.11.1. By doing so, he has agreed that we may
render a decision in “brief and conclusionary form” consistent with App.R. 11.1(E).
{¶2} The totality of the circumstances convince us that the court did not err by
finding that the issuing magistrate had probable cause to conclude that there was a fair
probability contraband or evidence of a crime would be found at Brown’s residence.
State v. Jones, 143 Ohio St.3d 266, 2015-Ohio-483, 37 N.E.3d 123, ¶ 13; Illinois v.
Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
{¶3} The affidavit filed in support of the application for the search warrant stated
that the affiant received information from a confidential informant with a previous record
of providing corroborated information. The informant stated that a person named “JB”
was selling marijuana out of a studio in the residence’s basement. The affiant
determined that Brown, whose initials, age, and race matched those provided by the
informant, possibly lived at the address. Brown’s criminal background showed a history
of drug trafficking and drug possession. The affiant conducted two “trash pulls” at the
stated address and, on both occasions, found a number of plastic bag “tear offs” and burnt
marijuana cigarettes and marijuana “debris.” With respect to the plastic bag “tear offs,”
the affiant stated:
[I]n his training and experience, marijuana and other narcotics are placed
into the smaller sandwich style bags, and the drug trafficker tears and keeps
the corner from the baggy containing the marijuana or narcotics, discarding
the empty portion of the baggy into the trash. The smaller bags of marijuana
or narcotics are now packaged for re-sale.
{¶4} The court found the affidavit “remarkably vague” in some respects; for
example, that it did not assert that the person identified by the informant was selling drugs
from the residence — the affidavit stated that “JB” was selling drugs in the city in which
the residence was located. However, affidavits filed in support of warrant applications
should not be considered hypertechnically, but in a practical, “common sense” manner to
determine whether there is a fair probability that a search will uncover contraband or
evidence of a crime. See State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989),
paragraph one of the syllabus. The affiant learned from the informant that JB “had a
studio in his basement where people would sell and use marijuana as well.” With the
affidavit clearly stating that JB “lived at the residence” and sold drugs from there, a fair
reading of the affidavit linked Brown to the drug activity allegedly being conducted at the
residence.
{¶5} We likewise find that evidence discovered in the two trash pulls supplied
probable cause to believe that a search of the premises would yield contraband or
evidence of a crime. The affiant stated that he found plastic bags with torn corners.
These indicated to the affiant that the bags were “indicative of individuals packaging
drugs for re-sale.”
{¶6} Brown argues that the informant’s information went “stale” because the
police waited up to one month after receiving the tip to search the contents of his trash for
contraband or evidence of a crime. Probable cause must exist at the time the application
for a warrant is made. State v. Shropshire, 8th Dist. Cuyahoga No. 103808,
2016-Ohio-7224, ¶ 25. There is no arbitrary time limit for when information offered to
support a search warrant application becomes stale; instead, the information becomes
stale “when enough time has elapsed such that there is no longer ‘sufficient basis to
believe * * * that the items to be seized are still on the premises.’” United States v. Lacy,
119 F.3d 742, 746 (9th Cir.1997), quoting United States v. Gann, 732 F.2d 714, 722 (9th
Cir.1984). Although the trash pulls may have come as much as one month after the
informant’s tip, the trash pulls themselves yielded evidence indicative of drug trafficking.
The warrant application was made just one day after the second trash pull, so the
information used in support of the application was fresh.
{¶7} Brown next argues that the court erred by refusing to rule on his motion to
require the state to reveal the identity of the confidential informant. When the trial court
fails to rule on a pretrial motion, we assume that the court overruled the motion. State ex
rel. Scott v. Streetsboro, 150 Ohio St.3d 1, 2016-Ohio-3308, 78 N.E.3d 809, ¶ 14.
Balancing Brown’s interests in his right to confront and cross-examine his accuser against
the public’s interest in protecting the flow of information regarding criminal activity to
the police, State v. Williams, 4 Ohio St.3d 74, 446 N.E.2d 779 (1983), syllabus, we find
no error. Brown had the burden of establishing the need for disclosure, but failed to state
a compelling reason why disclosure would be helpful. He argued that the search warrant
“was based on nothing other than the word of [a] Confidential Reliable Informant[,]” but
the warrant application contained evidence showing that the informant’s tip had been
verified to the satisfaction of the issuing magistrate with potential evidence of drug
trafficking culled from the trash pulls.
{¶8} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
MELODY J. STEWART, JUDGE
MARY EILEEN KILBANE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR