State v. Mooney ( 2012 )

[Cite as State v. Mooney, 2012-Ohio-852.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 11 CA 8
SANDRA MOONEY
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 10 CR 65
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 23, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTINE C. WILLIAMS DAVID M. HUNTER
ASSISTANT PROSECUTOR 244 West Main Street
164 East Jackson Street Loudonville, Ohio 44842
Millersburg, Ohio 44654
Holmes County, Case No. 11 CA 8 2
Wise, J.
{¶1} Defendant-Appellant Sandra Mooney appeals the decision of the Court of
Common Pleas, Holmes County, which overruled her motion to suppress evidence in a
case involving several drug-related offenses. The relevant facts leading to this appeal
are as follows.
{¶2} On November 12, 2009, Officer Zambounis of the Medway Drug
Enforcement Agency obtained a search warrant for Appellant Sandra Mooney’s
residence at 576-A South Washington Street, Millersburg. At that time, an additional
search warrant was obtained for the adjoining residence of Sue Mooney, appellant’s
daughter, at 576-B South Washington Street. Medway officers had been suspicious of
alleged drug activity involving appellant and/or her daughter since 2005. According to
the warrant request, a confidential informant had attempted to buy marihuana from
appellant in 2008 and was gifted a small quantity of the drug by appellant.
{¶3} The warrants directed law enforcement officers to search for the following
property:
{¶4} “Marihuana or any other controlled substance as defined in Revised Code
3719.41; drug devices, instruments, or paraphernalia used to administer or to prepare
for sale controlled substances; ledgers, computers, books or any other records relating
to the sale, preparation, cultivation, or possession of controlled substances; or United
States Currency relating to the sale or use of controlled substances; safes and weapons
* * *.”
{¶5} Medway officers proceeded to search 576-A and 576-B South Washington
on November 12, 2009. As a result of the search, appellant was charged with Child
Holmes County, Case No. 11 CA 8 3
Endangering, a felony of the third degree; Cultivation of Marihuana, a fourth-degree
misdemeanor; Possession of Drug Paraphernalia, a fourth-degree misdemeanor; and
Possession of Marihuana, a minor misdemeanor.
{¶6} A preliminary hearing was conducted in the Holmes County Municipal
Court on August 11, 2010. Appellant was indicted on August 17, 2010. Appellant
thereafter filed a motion to suppress the evidence obtained as a result of the search of
her residence. A hearing on the motion was held in the Holmes County Court of
Common Pleas on October 5, 2010. After providing time for each side to present written
memoranda, the trial court overruled the motion to suppress.
{¶7} The matter proceeded to trial on May 5, 2011. After the jury was
impaneled, a plea arrangement was made whereby appellant pled to no contest to the
following: Child Endangering, R.C. 2919.22(A)(1), a first-degree misdemeanor;
Cultivation of Marihuana, R.C. 2925.04(A), a fourth-degree misdemeanor; Possession
of Drug Paraphernalia, R.C. 2925.14(C)(1), a fourth-degree misdemeanor; and
Possession of Marihuana, R.C. 2925.04(A), a minor misdemeanor. Appellant was
sentenced, inter alia, to 180 days in jail, with 179 days suspended.
{¶8} On May 10, 2011, appellant filed a notice of appeal. She herein raises the
following Assignment of Error:
{¶9} “I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S
MOTION TO SUPPRESS.”
Holmes County, Case No. 11 CA 8 4
I.
{¶10} In her sole Assignment of Error, appellant contends the trial court erred in
overruling her motion to suppress the evidence obtained as a result of the search
warrant. We disagree.
{¶11} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's finding of fact.
Second, an appellant may argue the trial court failed to apply the appropriate test or
correct law to the findings of fact. Finally, an appellant may argue the trial court has
incorrectly decided the ultimate or final issue raised in the motion to suppress. When
reviewing this third type of claim, an appellate court must independently determine,
without deference to the trial court's conclusion, whether the facts meet the appropriate
legal standard in the given case. State v. Curry (1994), 95 Ohio App.3d 93, 96, 641
N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State
v. Guysinger (1993), 86 Ohio App.3d 592, 621 N .E.2d 726. As the United States
Supreme Court held in Ornelas v. U .S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663,
134 L.Ed.2d 911, “... as a general matter determinations of reasonable suspicion and
probable cause should be reviewed de novo on appeal.”
{¶12} The Fourth Amendment to the United States Constitution and Section 14,
Article I, Ohio Constitution, prohibit the government from conducting unreasonable
searches and seizures of persons or their property. Terry v. Ohio (1968), 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d
1271. The United States Supreme Court has held that “ ‘[a]t the very core [of the Fourth
Amendment] stands the right of a man to retreat into his own home and there be free
Holmes County, Case No. 11 CA 8 5
from unreasonable governmental intrusion.’ ” Payton v. New York (1980), 445 U.S. 573,
589-590, 100 S.Ct. 1371, 63 L.Ed.2d 639, quoting Silverman v. United States (1961),
365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734.
{¶13} In reviewing the sufficiency of probable cause in an affidavit submitted in
support of a search warrant, our duty is to ensure that the magistrate or judge who
issued the warrant had a substantial basis for concluding that probable cause existed.
State v. George (1980), 45 Ohio St .3d 325, paragraph two of the syllabus. An appellate
court must not substitute its judgment for that of the magistrate or trial judge by
conducting a de novo determination as to whether sufficient probable cause existed
upon which to issue the search warrant. Id. A trial judge or magistrate, when issuing a
search warrant, must make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit, 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. at paragraph one of the
syllabus, citing Illinois v. Gates (1983), 462 U.S. 213, 238-239. As a reviewing court, we
must accord great deference to the trial court's determination of probable cause.
George, at paragraph two of the syllabus. Doubtful or marginal cases should be
resolved in favor of upholding the warrant. Id. The United States Supreme Court has
held that the totality of the circumstances must be examined in determining whether
probable cause existed for a search warrant. Illinois v. Gates, supra. “Probable cause”
means only the probability and not a prima facie showing of criminal activity. George,
supra. See also Beck v. Ohio (1964), 379 U.S. 89.
Holmes County, Case No. 11 CA 8 6
{¶14} In the case sub judice, appellant notes that all of the trash pulls indicated
evidence of marihuana. Appellant’s Brief at 7. However, appellant maintains that all of
the trash pulls contained discarded mail belonging only to appellant’s daughter, Sue,
and that Officer Zambounis knew that Sue lived at 576-B, not at 576-A. She claims the
only evidence concerning marihuana in her residence, 576-A, was from intelligence
obtained by law enforcement in 2005 and 2008, the latter date being nearly a year and
one-half before the warrant. Thus, appellant contends, while probable cause may have
existed as to 576-B, the only information supporting a search of 576-A was effectively
“stale” and would not have supported the warrant.
{¶15} The search warrant request affidavit prepared by Officer Zambounis states
that trash pulls were made on October 21, 2009; October 28, 2009; November 4, 2009;
and November 11, 2009. These resulted in marihuana residue, stems, and fresh
cuttings/trimmings. Zambounis also conducted an online phone directory search and
found both appellant and her daughter, Sue, were listed at 576 South Washington, with
no reference to or differentiation between apartments “A” and “B.” The phone directory
search also indicated that Michael Farnsworth, who has a 2003 drug conviction on his
record, was using the generic 576 South Washington address. Furthermore, some of
the mail to Sue utilized 576-A in the address, even though she resided at 576-B.
{¶16} Upon review, affording due deference to the decision of the judge issuing
the search warrant (George, supra), we hold the trial court, in relying upon Officer
Zambounis’ affidavit, had a substantial basis for concluding that probable cause existed
to support the warrant’s issuance.
Holmes County, Case No. 11 CA 8 7
{¶17} Having found no reversible error as to the validity of the search warrant,
upon review we further hold the trial court did not err in denying the motion to suppress
under the facts and circumstances of this case.
{¶18} Appellant’s sole Assignment of Error is overruled.
{¶19} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Holmes County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.
___________________________________
___________________________________
___________________________________
JUDGES
JWW/d 0214
Holmes County, Case No. 11 CA 8 8
IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
SANDRA MOONEY :
:
Defendant-Appellant : Case No. 11 CA 8
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Holmes County, Ohio, is affirmed.
Costs assessed to appellant.
___________________________________
___________________________________
___________________________________
JUDGES