State v. Rapp ( 2013 )

[Cite as State v. Rapp, 2013-Ohio-5384.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 12 MA 117
V. )
) OPINION
TRENT P. RAPP, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 09CR819
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant Attorney Samuel G. Amendolara
860 Boardman-Canfield Road
Suite 204
Youngstown, Ohio 44512
Attorney Dennis A. DiMartino
1032 Boardman-Canfield Road
Suite 103
Youngstown, Ohio 44512-4238
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: December 6, 2013
[Cite as State v. Rapp, 2013-Ohio-5384.]
DONOFRIO, J.
{¶1} Defendant-appellant, Trent Rapp, appeals from a Mahoning County
Common Pleas Court judgment denying his motion to suppress evidence found in his
home when police executed search warrants based on information provided by a
“cooperating source.”
{¶2} On January 15, 2009, it came to the attention of Canfield Police
Detective Brian McGivern that counterfeit $100 bills were found at the Mahoning
County Career and Technical Center (MCCTC). Det. McGivern spoke to one of the
students who had a counterfeit bill. This student, a juvenile, was an ongoing
“cooperating source” (CS) with Canfield Police. The CS had provided the police with
information during the preceding year about drugs in Canfield, which led to at least
two arrests and two convictions.
{¶3} The CS was employed by appellant, who police knew to be the owner
of the Canfield Dairy Queen. The CS told Det. McGivern he had received the $100
bill from appellant’s residence, that appellant made the counterfeit bills on his
computer, and appellant had “stacks” of counterfeit bills in his residence located in
Beaver, Ohio. The CS further told Det. McGivern that appellant always had a large
amount of marijuana at his residence and allowed Canfield High School students to
use marijuana at his residence. Additionally, the CS told police appellant performed
oral sex on him on numerous occasions and compelled CS to perform oral sex on
him. The CS told police appellant threatened to dismiss him from his job if he did not
continue to engage in the sexual activity. Finally, the CS told police appellant had
numerous surveillance cameras located inside of his residence.
{¶4} Based on this information, Det. McGivern, along with Beaver Police
Detective Eric Datillo, filed an affidavit for a search warrant of appellant’s residence
on January 21, 2009. The trial court issued the search warrant that day (warrant
one).
{¶5} The detectives executed the warrant and recovered numerous items
including, suspected marijuana and cocaine, counterfeit money, computers,
videotapes, and computer equipment.
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{¶6} On January 26, 2009, Det. Datillo filed an affidavit for another search
warrant to allow agents at the Ohio Bureau of Criminal Identification and Investigation
to search appellant’s computers and computer equipment that were seized during the
execution of warrant one. The trial court issued the search warrant that day (warrant
two).
{¶7} Subsequently, a Mahoning County Grand Jury indicted appellant on
one count of trafficking in marijuana, a fifth-degree felony in violation of R.C.
2925.03(A)(2)(C)(3)(a); one count of possession of cocaine, a fifth-degree felony in
violation of R.C. 2925.11(A)(C)(4)(a); one count of corrupting another with drugs, a
fourth-degree felony in violation of R.C. 2925.02(A)(4)(c)(C)(3); eight counts of illegal
use of a minor in nudity oriented material or performance, fifth-degree felonies in
violation of R.C. 2907.323(A)(3)(B); four counts of pandering sexually oriented
matter, fourth-degree felonies in violation of R.C. 2907.322(A)(5); and one count of
possessing criminal tools, a fifth-degree felony in violation of R.C. 2923.24(A)(C).
Appellant pleaded not guilty.
{¶8} Appellant filed a motion to suppress the evidence obtained as a result
of the two search warrants and to suppress statements he made to police
subsequent to the execution of the warrants and his arrest.
{¶9} The trial court first ruled on the motion without holding a hearing.
Initially, it pointed out that appellant’s motion was untimely. Nonetheless, it went on
to address the merits. The court found a hearing was unnecessary because all of the
information needed was contained in the search warrant affidavits, which appellant
attached to his motion. The court went on to overrule appellant’s motion as to the
evidence seized as a result of the search warrants. The court sustained appellant’s
motion as to the statements appellant made to police prior to being read his Miranda
rights and ordered those statements suppressed.
{¶10} Appellant filed a motion for reconsideration, which the trial court granted
so that it could hold a hearing.
{¶11} At the suppression hearing, the court heard testimony from Detectives
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McGivern and Datillo. The court found that as to warrant one, the CS’s information
was sufficiently reliable and the time frame of the investigation was established. As
to warrant two, the court found because warrant one was valid, warrant two was not
based on information obtained as a result of an illegal search.
{¶12} Appellant subsequently entered into a plea agreement with plaintiff-
appellee, the State of Ohio. Pursuant to the agreement’s terms, appellant entered a
no contest plea to trafficking in marijuana, possession of cocaine, corrupting another
with drugs, one count of illegal use of a minor in nudity oriented material or
performance, two counts of pandering sexually oriented material, and possessing
criminal tools. In exchange, the state dismissed the remaining seven counts of illegal
use of a minor in nudity oriented material or performance and the remaining two
counts of pandering sexually oriented material. The state also dismissed another
indictment against appellant for furnishing false identification. The trial court
accepted appellant’s plea and entered findings of guilt.
{¶13} The court later held a sentencing hearing where it sentenced appellant
to five years of community control sanctions, including a $5,000 fine, a no contact
order with the victim, and 500 hours of community service. Additionally, the court
classified appellant as a Tier I sex offender.
{¶14} Appellant filed a timely notice of appeal on June 26, 2012.
{¶15} Appellant raises four assignments of error each of which asserts the
trial court erred in overruling his motion to suppress. Thus, the same standard of
review applies to each assignment of error.
{¶16} Our standard of review with respect to a motion to suppress is first
limited to determining whether the trial court's findings are supported by competent,
credible evidence. State v. Winand, 116 Ohio App.3d 286, 288, 688 N.E.2d 9 (7th
Dist.1996), citing Tallmadge v. McCoy, 96 Ohio App.3d 604, 608, 645 N.E.2d 802(9th Dist.1994). Such a standard of review is appropriate as, “[i]n a hearing on a
motion to suppress evidence, the trial court assumes the role of trier of fact and is in
the best position to resolve questions of fact and evaluate the credibility of
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witnesses.” State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E .2d 831 (4th
Dist.1994). An appellate court accepts the trial court's factual findings and relies
upon the trial court's ability to assess the witness's credibility, but independently
determines, without deference to the trial court, whether the trial court applied the
appropriate legal standard. State v. Rice, 129 Ohio App.3d 91, 94, 717 N.E.2d 351(7th Dist.1998). A trial court's decision on a motion to suppress will not be disturbed
when it is supported by substantial credible evidence. Id.{¶17} Appellant’s first assignment of error states:
THE TRIAL COURT ERRED BY OVERRULING THE MOTION
TO SUPPRESS EVIDENCE REGARDING THE SEARCH OF
DEFENDANT-APPELLANT’S HOME, WHEN THE OFFICERS
LACKED PROBABLE CAUSE TO REQUEST A SEARCH WARRANT.
{¶18} Appellant argues that the detectives here had no “facts” in the affidavit
for warrant one but only “allegations.” He claims they had to do something to confirm
or deny the allegations made by the CS. Without conducting some investigation into
the CS’s allegations, appellant asserts the detectives lacked any specific and
articulable information concerning alleged criminal activity. Therefore, appellant
contends, the trial court should have suppressed the evidence obtained during the
search of his home.
{¶19} The Ohio Supreme Court has held:
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
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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.
State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph two of the
syllabus. Given the standard, in this case we must simply determine whether we can
say the detectives’ affidavit provided a substantial basis for the issuing court's
conclusion that there was a fair probability marijuana, counterfeit money, personal
computers, and linens and pillows would be found in appellant’s residence. Id. at
330. Search warrants and their accompanying affidavits enjoy a presumption of
validity. State v. Wallace, 7th Dist. Nos. 11 MA 137-11 MA 155, 2012-Ohio-6270,
¶27.
{¶20} Regarding the reliability of the CS, the trial court pointed to the
statement in the affidavit that the CS “has proven reliable in the past to Canfield
Police Department Investigations.” The court acknowledged this statement was
somewhat vague, but it found that given the standard it was to apply in determining if
probable cause existed, the affidavit was sufficient.
{¶21} A judge may find probable cause exists for a search warrant based on
hearsay provided there is a substantial basis (1) for believing the source of the
hearsay to be credible and (2) for believing there is a factual basis for the information
furnished. Crim.R. 41(C)(2).
{¶22} A statement by the affiant-officer that the informant has been reliable in
the past is generally sufficient to show the informant’s reliability. State v. Karr, 44
Ohio St.2d 163, 166, 339 N.E.2d 641 (1975). “The fact that an informant has
provided reliable information in the past gives the magistrate a definite indication of
credibility.” Id. But it is also strongly advised that the affiant provide facts as to the
number of past incidents the informant helped with, the manner of information
provided, and the degree of accuracy so that the judge can be fully informed of the
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grounds for the informant’s reliability. Id.{¶23} In this case, the affidavit for warrant one specifically stated the CS “has
been proven reliable in the past to Canfield Police Department Investigations as the
CS supplied information which lead to the arrest and conviction(s) of others, which
also included execution of search warrant(s).” By making this statement in the
affidavit Det. McGivern vouched for the CS’s credibility and provided a substantial
basis for believing the CS to be credible.
{¶24} And as to the factual basis for the information furnished, the CS’s
information came from his own observations of appellant’s home. The basis of
knowledge is sufficient from an unnamed informant when it is the informant’s
personal observation, which is then related to the affiant. State v. Blair, 7th Dist. No.
95-JE-8, 1996 WL 342215, *3 (June 18, 1996).
{¶25} Appellant contends that the detectives had a “reckless disregard for the
truth” because they failed to confirm or deny the accuracy of the CS’s statements. In
support, he cites to State v. Waddy, 73 Ohio St.3d 424, 588 N.E.2d 819 (1992),
where the Court stated that in order to “successfully attack the veracity of a facially
sufficient search warrant affidavit, a defendant must show by a preponderance of the
evidence that the affiant made a false statement, either ‘intentionally, or with reckless
disregard for the truth.’” Id. at 441, quoting Franks v. Delaware (1978), 438 U.S. 154,
155-156, 98 S.Ct. 2674, 57 L.Ed.2d 667.
{¶26} What appellant fails to recognize, however, is that “[t]he right in Franks
to attack the truthfulness of averments in a search warrant affidavit is restricted solely
to false or untruthful statements by the affiant and not hearsay statements of others,
including confidential informants.” (Emphasis added.) State v. Clark, 4th Dist. No. 92
CA 485, 1993 WL 216319, *5, fn. 2 (June 22, 1993). There is no indication in this
case that the detectives acted with reckless disregard for the truth in the statements
they made. Instead, they truthfully reported what the CS told them. And while this is
clearly hearsay, hearsay is an acceptable basis for a search warrant application.
State v. Wilson, 156 Ohio App.3d 1, 2004-Ohio-144, 804 N.E.2d 61, ¶11 (8th Dist.);
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Crim.R. 41(C)(2).
{¶27} Additionally, an affidavit based solely on hearsay by confidential
informants has been upheld in the past. For instance, in State v. Taylor, 82 Ohio
App.3d 434, 612 N.E.2d 728 (2d Dist.1992), the court found sufficient an affidavit that
stated a confidential informant had personally seen large amounts of cocaine being
prepared for distribution within the past 24 hours at the house to be searched and the
affiant officer relied on assurances from another officer, who relayed the informant’s
statements to the affiant, that the informant was reliable and had given information in
the past that had led to felony arrests.
{¶28} Thus, the trial court properly found the affidavit for warrant one
contained sufficient statements regarding the CS’s reliability and the CS’s statements
were sufficient probable cause on which to base the warrant.
{¶29} Accordingly, appellant’s first assignment of error is without merit.
{¶30} Appellant’s second assignment of error states:
THE TRIAL COURT ERRED BY OVERRULING THE MOTION
TO SUPPRESS EVIDENCE REGARDING THE SEARCH OF
DEFENDANT-APPELLANT’S COMPUTER, WHEN THE OFFICERS
FAILED TO TAKE ANY STEPS WHATSOEVER TO CONFIRM OR
DENY THE ALLEGATIONS OFFERED BY THE PRIVATE CITIZEN.
{¶31} In this assignment of error, appellant makes the same argument as he
did in his first assignment of error. He argues that the detectives, with reckless
disregard for the truth, failed to take any steps to corroborate the CS’s allegations.
This time he urges, however, that the trial court should have suppressed the
evidence obtained during the search of his computer.
{¶32} As discussed in detail in appellant’s first assignment of error, there was
evidence that the CS had proven reliable in the past, the CS relayed his personal
observations to the detectives, and hearsay is acceptable in an affidavit for a search
warrant. And while corroborating evidence would have bolstered the detective’s
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affidavit, appellant can point to no case law that requires an officer to corroborate the
information given by a confidential informant who has been proven reliable in the
past.
{¶33} Accordingly, appellant’s second assignment of error is without merit.
{¶34} Appellant’s third assignment of error states:
THE TRIAL COURT ERRED BY OVERRULING THE MOTION
TO SUPPRESS EVIDENCE WHEN THE AFFIDAVITS NEVER LISTED
A DATE THAT THE COOPERATING SOURCE OBSERVED
EVIDENCE OF CRIMINAL ACTIVITY, MAKING WHATEVER
INFORMATION WAS PROVIDED “STALE.”
{¶35} Here appellant asserts the affidavit for warrant one was insufficient
because it did not contain a timeframe for when the CS witnessed the criminal activity
or evidence.
{¶36} A search warrant affidavit must present timely information and include
facts so closely related to the time of issuing the warrant as to justify a finding of
probable cause at that time. State v. Hollis, 98 Ohio App.3d 549, 554, 649 N.E.2d 11(11th Dist.1991). When examining whether information contained in a search
warrant’s affidavit is stale, courts should consider (1) the character of the crime; (2)
the criminal; (2) whether the thing to be seized is perishable and easily transferable
or of enduring utility to its holder; (4) the place to be searched; and (5) whether the
information in the affidavit relates to a single isolated incident or protracted ongoing
criminal activity. State v. Pritt, 7th Dist.-12-114, 2002-Ohio-4487, ¶13. There is no
arbitrary time limit on how old information can be; the alleged facts simply must justify
the conclusion that the contraband is present on the premises to be searched. State
v. Jones, 72 Ohio App.3d 522, 526, 595 N.E.2d 485 (6th Dist.1991).
{¶37} In the present case, the trial court found the affidavit set out a sufficient
timeline. The court noted the affidavit listed dates of searches and interviews, both of
which occurred within six days of the issuance of the search warrant.
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{¶38} The affidavit for warrant one stated that on January 15, 2009, Det.
McGivern was briefed by the school resource officer regarding counterfeit bills seized
at the MCCTC. That same day, Det. McGivern went to the CS’s house where he
consensually searched the CS’s bedroom and located another counterfeit bill. The
CS told Det. McGivern the counterfeit money was taken from appellant’s residence.
The CS told Det. McGivern that appellant “has” stacks of counterfeit bills in his
residence and identified appellant’s address. The CS also told Det. McGivern that
appellant “always has” a large amount of marijuana at his residence and “allows”
Canfield High School students to use it. The next day, during an interview, the CS
told Det. McGivern that he is employed by appellant, appellant performed oral sex on
him on numerous occasions, appellant compelled the CS to perform oral sex, and
appellant threatened to dismiss the CS from his job if he did not “continue” to engage
in sexual activity.
{¶39} The better practice here would have been to include information as to
when exactly the CS had seen the drugs and counterfeit money at appellant’s
residence. But the use of the words “has,” “always has,” “allows,” and “continue”
justify a conclusion that Det. McGivern was not facing an isolated incident here.
Instead, the CS’s statements indicated an on-going, present occurrence and
demonstrated the items were likely located in appellant’s house at the time. And the
CS made these statements to Det. McGivern just days before the search warrant was
issued. Given that we are to afford great deference to the judge’s determination of
probable cause and resolve marginal cases in favor of upholding the warrant, it was
reasonable for the issuing judge to have concluded the CS’s information was not
stale and marijuana, counterfeit currency, and other contraband were currently
located at appellant’s residence as part of an on-going affair.
{¶40} Accordingly, appellant’s third assignment of error is without merit.
{¶41} Appellant’s fourth assignment of error states:
THE TRIAL COURT ERRED BY OVERRULING THE MOTION
TO SUPPRESS EVIDENCE REGARDING THE 2ND SEARCH
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WARRANT, AS IT WAS ISSUED BASED SOLELY ON THE
DEFECTIVE ISSUANCE OF THE 1ST SEARCH WARRANT,
THEREBY RENDERING THE EVIDENCE INADMISSIBLE.
{¶42} Finally, appellant argues warrant two was invalid because it was issued
solely as a result of the items seized during the execution of warrant one thus
rendering it “the fruit of the poisonous tree.”
{¶43} Evidence obtained by the exploitation of an illegal search must be
suppressed as the “fruits of the poisonous tree.” State v. Haslam, 7th Dist. No. 08-
MO-4, 2009-Ohio-696, ¶25. The information in the affidavit for warrant two was
based in large part on the evidence seized in the execution of warrant one and also
repeated the information contained in the affidavit for search warrant one. Because
warrant one was valid, appellant’s “fruits of the poisonous tree” argument fails
because there is no “poisonous tree.”
{¶44} Accordingly, appellant’s fourth assignment of error is without merit.
{¶45} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Vukovich, J., concurs.
Waite, J., concurs.