State v. Oloff , 2012 Ohio 6048 ( 2012 )

[Cite as State v. Oloff, 2012-Ohio-6048.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
: Appellate Case No. 2012-CA-34
Plaintiff-Appellee :
: Trial Court Case No. 11-CR-474
v. :
:
JEFF C. OLOFF : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 21st day of December, 2012.
...........
STEPHEN K. HALLER, Atty. Reg. #0009172, by STEPHANIE R. HAYDEN, Atty. Reg.
#0082881, Greene County Prosecutor’s Office, 55 Greene Street, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
JAY A. ADAMS, Atty. Reg. #0072135, 36 North Detroit Street, Suite 102, Xenia, Ohio
45385
Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant Jeff Oloff appeals from his conviction and sentence,
2
following a no-contest plea, for Illegal Cultivation of Marijuana in violation of R.C.
2925.04(A) and Possession of Criminal Tools in violation of R.C. 2923.24(A). Oloff
contends that the search warrant issued for his home was not based upon probable cause and
that the evidence found in the home should have been suppressed. We conclude that the
search warrant for Oloff's home was based on probable cause, and that the evidence found
therein was admissible. Accordingly, the judgment of the trial court is Affirmed.
I. A Search Warrant Is Issued to Search 698 Sueden Drive
{¶ 2} In 2010 the Beavercreek police department was investigating a series of
crimes involving the theft of copper piping. The crimes were eventually traced to a vehicle
that was subsequently stopped by the Riverside police department. The woman driving the
vehicle admitted her role in the thefts, and also gave information regarding the fact that her
accomplice, J.C. Oloff, stored the stolen property at his residence located at 698 Sueden Drive,
Beavercreek. The woman also informed the police that a marijuana crop was being grown at
that residence. Upon further investigation of the residence, the Beavercreek police proceeded
to obtain a search warrant for the residence.
II. The Course of Proceedings
{¶ 3} Following the search, defendant-appellant Jeff Oloff 1 was arrested and
charged by indictment with one count of Possession of Marijuana, one count of Trafficking in
Marijuana, one count of Illegal Cultivation of Marijuana and one count of Possession of
Criminal Tools. The indictment also contained five forfeiture specifications.
{¶ 4} Oloff moved to suppress evidence. The parties stipulated two exhibits: the
1
Jeff Oloff is the father of the theft suspect, J.C. Oloff.
3
search warrant and the affidavit in support thereof, as evidence in connection with the motion,
and both parties submitted briefs on the merits. The affidavit in support of the search warrant
averred, in pertinent part, as follows:
That the facts upon which the Affiant bases said beliefs are:
1. The Affiant, Detective Nick Amato, is employed by the Beavercreek Police
Department and has been a sworn officer for the past five (5) years. During his tenure
with Beavercreek Police Department, Det. Amato has been involved in numerous
criminal investigations involving drug trafficking violations that have led to successful
prosecution. Det. Amato is a trained Evidence Technician and has attended several
advanced law enforcement training seminars. Det. Amato has completed the Miami
Valley Regional Basic and Advanced Drug Investigation School.
2. The Beavercreek Police Department Detective Section has been
investigating several Breaking and Entering reports over the past several weeks
involving a suspect or suspects that were breaking into dwellings and removing copper
water pipes and/or copper fuel pipes. Independent investigative efforts conducted by
members of the Beavercreek Police Department identified a potential suspect named
J.C. Oloff as committing the criminal activity and that Oloff was utilizing a 2002
Honda CRV bearing Ohio license DMU 2746 during the theft offenses.
3. On November 11, 2010 Det. Rodney Curd, Beavercreek Police Department,
obtained a court order from the Honorable Cynthia Heck to conduct electronic
surveillance of the 2002 Honda CRV bearing Ohio license DMU2746. Law
enforcement officials from Beavercreek Police Department conducted electronic and
4
physical surveillance of the 2002 Honda CRV from November 11, 2010 until
November 15, 2010.
4. On November 15, 2010 at approximately 12:38 AM the Honda CRV was
monitored by law enforcement officials as it traveled in a neighborhood in the City of
Riverside near Spinning Road, Montgomery County, Ohio. Law Enforcement
Officials from Dayton Police Department, Riverside Police Department, and
Beavercreek Police Department saturated the area in attempts to locate the suspect or
suspects committing the theft offenses. At approximately 1:00 AM on November 15,
2010 a Detective Jim Vance, Riverside Police Department, observed Oloff in
possession of copper pipe and a flat screen TV that Det. Vance was able to determine
was stolen from 866 Wagon Wheel which was a short distance from where Oloff was
contacted by Det. Vance.
5. The 2002 Honda CRV was located in a business parking lot near the
intersection of Spinning Road and Burkhardt Avenue and occupied by a female driver
named Ann M. Ranberger. Ranberger was taken into custody and admitted driving
Oloff while he committed multiple burglaries in the greater Greene and Montgomery
County area over the past several weeks. Ranberger admitted taking Oloff to the scrap
yard following the thefts and selling the copper that was stolen from the various
dwellings.
6. Ransberger also admitted that Oloff would at times store stolen property at
his residence at 698 Sueden Drive, Beavercreek, Greene County, Ohio. Ransberger
stated that many times Oloff would store copper that he had stolen in a trash can
5
located on the side of the dwelling at 698 Sueden drive. Ransberger stated that inside
the residence at 698 Sueden Drive is an indoor marijuana grow that is currently in
harvest stage. Ransberger stated the grow had approximately sixty mature plants.
Ransberger stated that Oloff utilizes a flat head screw driver to break into dwellings.
7. On November 16, 2010 Det. Ron Gudgell obtained a subpoena from the
Greene County Common Pleas Court Grand Jury for subscriber information from the
Dayton Power and Light Company for utility consumption of electricity at 698 Sueden
Drive, Beavercreek, Ohio and for comparison consumption purposes at 692 Sueden
Drive and 705 Sueden Drive, Beavercreek, Ohio. The dwellings at 692 Sueden Drive
and 705 Sueden Drive, Beavercreek, Ohio were similar in size to 698 Sueden Drive.
On November 16, 2010 the Affiant received information from the Dayton Power and
Light Company for consumption records for the listed addresses for the period of time
encompassing one year from November 2009 to November 2010. The information
received showed that 698 Sueden Drive significantly surpassed the comparison
addresses and at times more than doubled the consumption level of electricity at the
comparison addresses. Dayton Power and Light records indicate that Jeffrey C. Oloff
as [sic] the subscriber at 698 Sueden Drive. The Affiant knows through prior training
and experience that indoor marihuana growing operations consume unusually high
amounts of electricity in order to power the high intensity lamps and fans necessary to
facilitate proper conditions for manufacturing or growing marihuana plants. The
consumption of electricity listed for 698 Sueden Drive is indicative of a dwelling
conducting a marihuana grow operation and the electricity consumption levels are
6
consistent with the usage of high wattage indoor equipment needed in an indoor
marihuana growing operation. The Affiant has no information indicating the presence
of tools, swimming pools, hot tubs, alternate heating or other equipment that would
explain the large amount of electricity being used for the residence of 698 Sueden
Drive, Beavercreek, Greene County, Ohio.
8. Based on the aforementioned experience, the Affiant is familiar with the
modus operandi of persons involved in the illicit distribution of controlled substances
and knows the following:
a. It is common practice that drug traffickers and drug distributors hide their
addresses, their telephone and beeper/pager services by using other person's names in
order to avoid discovery by law enforcement officials;
b. It is common practice that drug traffickers and drug distributors often
maintain residences which are used as stash houses or locations for drug storage and
distribution and use nominees to obtain telephone service, utility service, et cetera,
once again to hide the true identity of the owner or person who will use that service;
c. That drug traffickers and drug distributors often place assets in corporate
entities in order to avoid detection of those assets by exercising dominion and control
over them;
d. It is common practice that even though these assets are in nominee names,
drug traffickers and drug distributors continue to utilize these assets by exercising
dominion and control over them;
e. It is common practice that drug traffickers and drug distributors maintain on
7
hand large amounts of U.S. currency in order to finance their ongoing drug business;
f. It is common practice that drug traffickers and drug distributors maintain
books, records, receipts, notes, ledgers, airline tickets, money orders, and other
documents relating to the transportation and distribution of drugs; drug traffickers and
drug distributors commonly front (provide drugs on consignment) to their clients; that
the aforementioned books, records, receipts, notes, ledgers, et cetera, are maintained
where the drug traffickers and drug distributors have ready access to them;
g. That it is common for drug traffickers and drug distributors to provide false
information to law enforcement officials regarding their identity and the actual address
of their residence;
h. That it is common for drug traffickers and drug distributors to conceal
drugs, contraband, proceeds of drug sales, at locations within their residences and/or
their businesses and within vehicles located at their residences and/or businesses from
law enforcement officials;
i. That persons involved in drug trafficking and drug distribution conceal in
their residences and businesses, drugs, large amounts of currency, financial
instruments, jewelry, automobile titles, other items of value and/or proceeds of drug
transactions and evidence of financial transactions relating to the obtainment and
concealment of large sums of money acquired from engaging in drug trafficking and
drug distribution activities;
j. That when drug traffickers and drug distributors amass large proceeds from
the sale of drugs, the drug traffickers and drug distributors attempt to legitimize
8
(launder) these profits; that to accomplish these goals, drug traffickers and drug
distributors many times utilize banks and/or financial institutions with their attendant
services, including but not limited to, cashier's checks, money drafts, letters of credit,
et cetera; that other entities used to launder monies include real estate firms and
purported legitimate business fronts;
k. It is common practice that drug traffickers and drug distributors commonly
travel to purchase and distribution areas to facilitate their trafficking; that after
purchasing drugs, the traffickers and drug distributors would transport, or cause to be
transported, drugs to areas in which they will distribute the drugs; and that the methods
of transportation include, but are not limited to, commercial airlines and rental and
private automobiles;
l. It is common practice that drug traffickers and drug distributors commonly
maintain addresses or telephone numbers in books and documents which reflect
names, addresses, and/or telephone numbers of their associates in the trafficking and
drug distribution organizations;
m. That drug traffickers and drug distributors take, or cause to be taken,
photographs of themselves, their associates, their property and their product, and that
the photographs are usually maintained at their residences and/or businesses of
traffickers and drug distributors;
n. That drug traffickers and drug distributors have in their possession, (that is
on their persons, at their residences, and/or their businesses), firearms, including but
not limited to, handguns, pistols, revolvers, rifles, shotguns, machine guns, knives, and
9
other weapons; that said firearms are used to protect and secure a drug trafficker's and
drug distributor's property which may include, but is not limited to, narcotics, jewelry,
narcotics paraphernalia, books, records, U.S. currency, et cetera;
o. That drug traffickers and drug distributors frequently maintain hidden
compartments within their residences and vehicles, as well as bury drugs, money, and
other items of evidence in containers such as shoe boxes, in safes, or hidden
compartments inside the residences;
p. That the exact quantities, prices, date, and methods of delivery of drugs are
seldom discussed in detailed terms over the telephone. These details are usually agreed
upon during face-to-face transactions. For this reason, most telephone conversations
regarding drugs are very brief, and often in code, understood by the traffickers and
drug distributors, but designed to mislead or confuse non-participants of the
conversations; that drug traffickers and drug distributors make extensive use of cellular
phones, text messaging, beepers/pagers to facilitate contacting one another such as
calling a beeper/pager and then inputting the number that should be called and even,
perhaps, adding additional instructions in the form of additional digits; that the
structure of a drug distribution organization involving marijuana and/or cocaine
usually consist of sources of supply, wholesale distributors, retail distributors, and the
ultimate consumers. The wholesale distributors often have more than one source of
supply and likewise the retail distributors often obtain drugs from more than one
wholesale distributor. After receiving a quantity of drugs, the source of supply will
often move it to a location other than where he/she sells it to the wholesale
10
distributors. The location of the source of supplies so-called "stash house", is generally
a well guarded secret known only to the source of supply and his closest associates.
Most of the drugs, as well as diluting and packaging materials, and weighing
equipment, are usually kept at the "stash house" and only those amounts needed for
immediate sale are kept at the point of sale;
q. That drug traffickers and drug distributors frequently use rental vehicles for
everyday travel and will maintain another vehicle, usually at an out of sight location, to
facilitate their drug trafficking business .
V. The Affiant further states that he has good reason and probable cause to
believe that within the residence, described above, will be evidence of the violations of
the Ohio Revised Code described in Paragraph "I" of the search warrant.
***
{¶ 5} The search warrant stated in Paragraphs I - III that there is probable cause to
believe that certain described items of property connected with the commission of the offenses
of Possession of Drugs, Trafficking in Drugs, Possession of Criminal Tools, Receiving Stolen
Property, Illegal Manufacture of Drug or Cultivation of Marihuana and Illegal Assembly or
Possession of Chemicals for the Manufacture of Drugs would be found at the Sueden Drive
property.
{¶ 6} Upon review of the affidavit, the trial court noted that the “basis asserted for
probable cause by the State was derived from two sources, information from an identified
informant and residential utility usage information.” The trial court went on to state as
follows:
11
In this case, the informant, while in custody, told law enforcement the
location of an alleged marijuana grow site, explained in which stage the grow
was, and even estimated the number of mature plants they could expect to find.
The informant also stated that the address she provided was the residence of
the suspect in the separate case, that she had been driving him while he
committed multiple burglaries over the past several weeks, and that he would
store stolen property at that address. The level of detail in the information she
provided is highly indicative of personal knowledge and, along with the fact
she was making statements against penal interests at the time with respect to
another investigation, all weigh in favor of the reliability of the information and
her credibility.
***
Law enforcement did not rest solely on the statements of the informant.
After receiving the information, officers then endeavored to corroborate it by
obtaining utility usage data on the address provided by the informant. * * *
[T]he consumption level of the subject address was substantially higher than
that of the comparison dwellings and led to the Affiant’s qualified conclusion
that it was indicative of a marihuana grow. This information thereby
corroborated that which was provided by the informant. Dkt. 30, P. 4-5.
{¶ 7} The trial court went on to conclude that under the totality of the
circumstances, there was a substantial basis for the magistrate’s decision to issue the warrant,
and thus overruled the motion to suppress. Thereafter, Oloff entered a plea of no contest to
12
the charges and was sentenced to a term of five years of community control.
{¶ 8} Oloff appeals from his conviction and sentence. His sole assignment of error
is as follows:
THE TRIAL COURT ERRED IN OVERRULING THE MOTION TO
SUPPRESS.
III. The Search Warrant in this Case Was Supported by Probable Cause
{¶ 9} Oloff contends that the trial court should have suppressed the evidence
obtained during the execution of the search warrant. He contends that the affidavit submitted
in support of the search warrant was deficient. Specifically, he argues that the affidavit fails
to establish a nexus between the original theft investigation and himself. He further argues
that the woman who provided the information to the police was not reliable and had no factual
basis for her allegations. He also contends that she failed to indicate that the marijuana was
presently on the premises. Finally, he contends that the affidavit omits relevant information
relating to the police investigation of the residence – specifically the information gleaned from
DP&L.
{¶ 10} The Fourth Amendment protects individuals from an unreasonable search in
their homes. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
Police may not enter one’s home to perform a search or to seize without a warrant, absent
consent or exigent circumstances. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63
L.Ed.2d 639 (1980).
{¶ 11} In determining the existence of probable cause from an affidavit submitted to
support a search warrant, the issuing magistrate must “ ‘make a practical, common-sense
13
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, 544 N.E.2d 640 (1989), paragraph one of the syllabus.
An affidavit in support of a search warrant must set forth all facts that led the affiant to believe
that the items are at the place to be searched. Akron v. Williams, 175 Ohio St. 186, 192
N.E.2d 63 (1963).
{¶ 12} A search warrant's supporting affidavit has a presumption of validity. State v.
Roberts, 62 Ohio St.2d 170, 178, 405 N.E.2d 247 (1980). A reviewing court does not
conduct a de novo review of a magistrate's determination of probable cause, but rather
determines whether the magistrate “had a substantial basis for concluding that probable cause
existed.” George at paragraph two of the syllabus. Probable cause means that there is a
“probability, and not a prima facie showing, of criminal activity.” Id. at 329.
{¶ 13} We turn first to Oloff’s complaint that the affidavit fails to establish a nexus
between himself and the original theft investigation. In this case, the affidavit establishes
that an investigation was being conducted regarding copper pipe thefts and that the perpetrator
and his accomplice were apprehended. It further establishes that the accomplice admitted her
role in the copper pipe thefts and proceeded to establish that J.C. Oloff had been storing some
of the stolen goods at the Sueden Drive residence. She further alleged that she was aware that
approximately sixty marijuana plants were being grown at that residence and that the plants
were ready to harvest.
{¶ 14} While it is true that this information does not establish a nexus between the
14
defendant and the copper pipe thefts, that is immaterial. The information in the affidavit, in
its totality, established probable cause to believe that evidence of marijuana cultivation could
be found at the residence, which was the evidence and the place of the search authorized by
the search warrant.
{¶ 15} As noted above, the police obtained electricity usage records for the residence
as well as two other residences on the street. The three residences were comparable in size,
but the Oloff residence was using significantly more electricity than the other two. The
affidavit goes on to state that, based upon Detective Amato’s training and experience, he was
of the opinion that the consumption of electricity at Oloff’s residence was “indicative of a
dwelling conducting a marihuana grow operation,” and that it is “consistent with the usage of
high wattage indoor equipment needed” for a marijuana grow operation.
{¶ 16} The information contained in the affidavit supported a finding, by the
magistrate, of probable cause to believe that evidence of the cultivation of marijuana could be
found at the residence
{¶ 17} We next address the claim that Ranberger was not a reliable informant and
that she failed to establish that there was a crime presently occurring at the residence. Oloff
contends that nothing in the affidavit makes reference to Ranberger as a “known source of
information, a reliable confidential informant or having provided law enforcement with
information in the past.”
{¶ 18} When assessing the reliability of information received from an informant,
Ohio courts have generally recognized three categories of informants: (1) the identified citizen
informant, (2) the known informant, i.e., someone from the criminal world who has a history
15
of providing reliable tips, and (3) the anonymous informant. State v. Jordan, 104 Ohio St.3d
21, 2004–Ohio–6085, 817 N.E.2d 684, ¶ 36. “An anonymous informant is generally regarded
as comparatively unreliable, and his tip, therefore, will ordinarily require independent and
objective corroboration. Ohio courts have generally accorded the identified citizen informant
greater credibility. * * * Information from an ordinary citizen who has personally observed
what appears to be criminal conduct carries with it indicia of reliability, and is therefore
presumed to be reliable.” State v. Reed, 2d Dist. Montgomery No. 23357, 2010–Ohio–299, ¶
44. (Citations omitted.)
{¶ 19} Furthermore, “an affidavit in support of a search warrant 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. Ingold, 10th Dist. Franklin No. 07AP–648,
2008–Ohio–2303, ¶ 22. (Citation omitted.) The test for staleness is simply “whether the
alleged facts justify the conclusion that contraband is probably on the person or premises to be
searched at the time the warrant issues.” Id. (Citation omitted.)
{¶ 20} In this case, Ranberger does not fall neatly into one of the above categories
of informants. She was under investigation for the copper pipe thefts and was making a
statement against her penal interest when she also informed the police about the marijuana
located at the residence where she knew J.C. Oloff had been storing stolen goods. She
informed the police that the marijuana “is currently in harvest stage,” and that there were
“approximately sixty mature plants.” As noted by the trial court, “the level of detail in the
information she provided is highly indicative of personal knowledge and, along with the fact
that she was making statements against penal interest at the time with respect to another
16
investigation, all weigh in favor of the reliability of the information and her credibility.” We
agree. And again, the police did not rely solely on Ranberger’s information, but proceeded to
investigate further by obtaining the DP&L records. We conclude that the trial court did not
err in concluding that Ransberger’s information, which was corroborated by the energy usage
records, was sufficiently reliable to be included in a determination of probable cause.
{¶ 21} Finally, Oloff contends that the affidavit failed to include information relevant
to the DP&L records for the three homes for which the records were obtained. Specifically,
he claims that the affidavit is deficient because it contains no information regarding the
number and age of residents in the homes, whether the basements of the residences were in
use, the level of insulation in the homes, or whether the homes had alternate forms of power.
He further notes that there is no information to indicate that the police made contact with any
of the residents of the homes. Finally, Oloff notes that while the affidavit does aver that the
affiant had no knowledge regarding the “presence of tools, swimming pools, hot tubs,
alternate heating or other equipment that would explain the large amount of electricity being
used” for the Oloff residence, it also does not show “the lack of existence of any or all of said
items.”
{¶ 22} This argument ignores the fact that the affidavit was not required to meet the
“beyond a reasonable doubt” standard of proof. The affidavit established that Ranberger
informed the police of the grow, that the police obtained energy usage records for three
comparably-sized homes, and that the discrepancy between the Oloff residence’s usage and
that of the other two residences was, in his experience (which was extensive), “consistent
with” the usage of equipment necessary for an indoor marijuana operation. The fact that the
17
energy records tended to corroborate Ranberger’s claims could lead a reasonable person to
conclude that there was a fair probability that marijuana was being grown at the Oloff
residence.
{¶ 23} We conclude that the trial court did not err in finding that the affidavit in
support of the search warrant established probable cause for the issuance of the search
warrant. Thus, the trial court did not err in denying the motion to suppress. Accordingly,
Oloff’s sole assignment of error is overruled.
IV. Conclusion
{¶ 24} Oloff’s sole assignment of error having been overruled, the judgment of the
trial court is Affirmed.
.............
DONOVAN and HALL, JJ., concur.
Copies mailed to:
Stephen K. Haller
Stephanie R. Hayden
Jay A. Adams
Hon. Michael A. Buckwalter