State v. Thompson , 2014 Ohio 3380 ( 2014 )

[Cite as State v. Thompson, 2014-Ohio-3380.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2013-08-158
: OPINION
- vs - 8/4/2014
:
CHARLES Z. THOMPSON, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2013-01-0099
Michael T. Gmoser, Butler County Prosecuting attorney, Kimberly L. McManus, Government
Services Center, 315 High Street, 11th Fl., Hamilton, Ohio 45011, for plaintiff-appellee
Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant
HENDRICKSON, J.
{¶ 1} Defendant-appellant, Charles Z. Thompson, appeals from his convictions for
trafficking in heroin, possession of heroin, having weapons while under disability, the illegal
use or possession of drug paraphernalia, and possession of marihuana following his plea of
no contest in the Butler County Court of Common Pleas. Appellant argues the trial court
erred in overruling his motion to suppress evidence obtained from an illegal search and
seizure. For the reasons set forth below, we overrule appellant's arguments and affirm his
Butler CA2013-08-158
conviction.
{¶ 2} Following a controlled buy of narcotics by a confidential informant at 10
Stephens Street, Apartment 2 in Hamilton, Butler County, Ohio, Detective Robert Horton with
the Hamilton Police Department executed an affidavit of probable cause and sought a
warrant to search the premises for, inter alia, drugs, drug related paraphernalia, and
weapons. A warrant was issued on January 15, 2013, and two days later the warrant was
executed. Appellant, the tenant of the apartment, was found on the premises along with
heroin, marihuana, and a Taurus 9mm handgun. Appellant was arrested and indicted on one
count of trafficking in heroin in violation of R.C. 2925.03(A)(2), one count of possession of
heroin in violation of R.C. 2925.11, one count of having weapons while under disability in
violation of R.C. 2923.13(A)(3), one count of the illegal use or possession of drug
paraphernalia in violation of R.C. 2925.14(C)(1), and one count of possession of marihuana
in violation of R.C. 2925.11.
{¶ 3} On March 27, 2013, appellant filed a motion to suppress and dismiss, arguing
the search was unconstitutional as the warrant was issued without probable cause.
Appellant argued the affidavit submitted by Horton did not establish probable cause for the
search as the affidavit did not demonstrate the confidential informant involved in the
controlled buy was reliable. Appellant also argued the information contained within Horton's
affidavit was stale as the affidavit did not definitively state when the controlled buy occurred,
but rather indicated the buy occurred "within the past few days."
{¶ 4} A hearing on the motion to suppress was held on April 25, 2013, at which time
the search warrant, including Horton's affidavit of probable cause, was entered into evidence.
The affidavit was signed by Horton on January 15, 2013, and the search warrant was
approved and issued that same day. The affidavit provided, in relevant part, the following:
Detectives of the Hamilton Police Department Vice Investigations
-2-
Butler CA2013-08-158
Section have received information from a reliable confidential
informant that Charles Zell Thompson has been selling heroin
from 10 Stephens Street #2 in the City of Hamilton, Butler
County Ohio. Within the past few days, Detective Horton met
with a reliable confidential informant in an effort to purchase
heroin from this residence. The reliable confidential informant
was search [sic] and found to have no contraband or currency on
their person. Detective Horton gave them photocopied funds to
use to purchase heroin from 10 Stephens Street #2. The reliable
confidential informant was observed by Detective Crouch and
Detective Horton entering the common door of 10 Stephens
Street and then walking down the steps towards apartment #2.
A few minutes later the confidential informant exited the common
door and they met with Detective Horton. This reliable
confidential informant handed over a plastic bag containing a tan
powder to Detective Horton and they were searched again. They
were found to have no other contraband or currency on their
person. The reliable confidential informant advised Detective
Horton that they had gone into apartment 2 to make the
purchase. The tan powder field tested positive as heroin. A
check of Charles Thompson's driver license verified that he uses
the address 10 Stephens Street #2 in the City of Hamilton, Butler
County Ohio.
{¶ 5} At the motion to suppress hearing, Horton testified about the controlled buy and
his procurement and execution of the warrant. In regards to the controlled buy, Horton
explained that immediately prior to the buy, he searched the confidential informant to make
sure the informant did not have contraband or currency on the informant's person. The
confidential informant was then given photocopied funds to purchase the narcotics, and was
"visually observed, monitored the whole time, until [the informant] enter[ed] the residence."
While the confidential informant was making the buy, Horton positioned himself
approximately 30-40 yards away from the common door of the apartment complex in which
the buy occurred. Horton explained the apartment complex was a multi-family apartment
building and the common entry door to the building led to a hallway and staircase. Apartment
1 and Apartment 2 were located on the bottom floor of the building. From Horton's vantage
point, he observed the confidential informant go downstairs, but could not tell which
apartment the informant entered. The confidential informant later exited the apartment
-3-
Butler CA2013-08-158
building carrying a plastic bag containing tan powder. The informant told Horton that he
purchased drugs from appellant in Apartment 2. A field test of the bag indicated the bag
contained heroin. No DNA samples or fingerprints were lifted from the bag. However, in an
effort to confirm the identity of the individual selling narcotics out of Apartment 2, Horton
checked the tenant list for the apartment and the "OLIG" database, both of which identified
appellant as the resident of Apartment 2.
{¶ 6} During cross-examination, Horton agreed his affidavit did not provide a specific
date on which the controlled buy occurred and did not indicate "exactly how many days had
passed since the drug deal had taken place." However, he clarified that the search warrant,
which was acquired on January 15, 2013, was obtained "within a week" after the buy. Horton
also acknowledged on cross-examination that as a result of the confidential informant's
cooperation in making the controlled buy, trafficking charges would not be brought against
the informant.
{¶ 7} On April 29, 2013, after determining there was a "substantial basis for the
issuance of the warrant," the trial court issued a decision denying appellant's motion to
suppress. Following the denial of his motion, appellant entered a no contest plea as to all
charges set forth in the indictment. Appellant was subsequently sentenced to four years in
prison.
{¶ 8} Appellant timely appealed, raising as his sole assignment of error the following:
{¶ 9} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN
DENYING HIS MOTION TO SUPPRESS EVIDENCE.
{¶ 10} Appellant argues the trial court erred by denying his motion to suppress as
there was insufficient probable cause to issue the search warrant. Appellant contends
Horton's affidavit did not set forth sufficient facts for the judge issuing the warrant to assess
the confidential informant's credibility, veracity, and reliability. He further argues the search
-4-
Butler CA2013-08-158
warrant lacked probable cause because Horton's affidavit "was not adequate regarding the
time or date of the alleged drug transaction such that the issuing [judge] could determine the
information was not stale."
{¶ 11} Our review of a trial court's denial of a motion to suppress presents a mixed
question of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-
Ohio-3353, ¶ 12. Acting as the trier of fact, the trial court is in the best position to resolve
factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial
of a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if
they are supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No.
CA2005-03-074, 2005-Ohio-6038, ¶ 10. "An appellate court, however, independently
reviews the trial court's legal conclusions based on those facts and determines, without
deference to the trial court's decision, whether as a matter of law, the facts satisfy the
appropriate legal standard." Cochran at ¶ 12.
{¶ 12} Pursuant to Crim.R. 41(C), a judge may issue a search warrant upon a finding
that "probable cause for the search exists." In determining whether probable cause exists to
support the issuance of a warrant, courts employ a "totality-of-the-circumstances" test, which
requires an issuing judge "to make a practical, commonsense 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." State v. Moore, 12th Dist. Butler No. CA2005-
08-366, 2006-Ohio-4556, ¶ 11, quoting State v. George, 45 Ohio St. 3d 325, 329 (1989).
{¶ 13} "When reviewing a finding of probable cause in a search warrant affidavit,
reviewing courts 'may not substitute their own judgment for that of the issuing [judge] by
conducting a de novo determination as to whether the affidavit contains sufficient probable
cause upon which the reviewing court would issue the search warrant.'" State v. Luna, 12th
-5-
Butler CA2013-08-158
Dist. Butler No. CA2008-04-115, 2009-Ohio-3421, ¶ 12, quoting George at 330. "The duty of
the reviewing court is simply to ensure that the [issuing judge] had a substantial basis for
concluding that probable cause existed." Moore at ¶ 12. Any after-the-fact scrutiny should
accord great deference to the issuing judge's determination and "doubtful or marginal cases
should be resolved in favor of upholding the warrant." George at 330.
Reliability of the Confidential Informant
{¶ 14} Appellant contends Horton's affidavit provides no information to establish the
reliability of the confidential informant and that the information set forth in the affidavit could
not be deemed reliable as it originated from a source who "possesses a history of felony
convictions" and who had "received a significant benefit in exchange for his assistance in the
form of dropped drug trafficking charges." Appellant also contends the confidential
informant's information was not independently corroborated by law enforcement and that law
enforcement merely relied on hearsay information in seeking and procuring the search
warrant.
{¶ 15} With regard to hearsay information in an application for a search warrant, Ohio
courts have consistently found that hearsay information is relevant to the determination of
probable cause. Moore, 2006-Ohio-4556 at ¶ 13. Where a confidential or anonymous
informant is the source of the hearsay, there must be some basis in the affidavit to indicate
the informant's credibility. State v. Rivera, 12th Dist. Butler No. CA2008-12-308, 2010-Ohio-
323, ¶ 31. "An affidavit containing detailed information from informants (permitting an
inference that illegal activity was personally observed by the informants), police corroboration
of an informant's information through its own independent investigation, or additional
testimony by the affiant helps to bolster and substantiate the facts contained in the affidavit."
Id., citing State v. Ingram, 12th Dist. Butler No. CA94-03-076, 1994 WL 519828, *2 (Sept. 26,
1994).
-6-
Butler CA2013-08-158
{¶ 16} The totality of the circumstances in the present case indicates the confidential
informant possessed credible and reliable information that there was a fair probability that
contraband or evidence of a crime would be found at 10 Stephens Street, Apartment 2.
Further the record demonstrates the confidential informant's information, combined with law
enforcement's own investigation corroborating such information, was sufficient to establish
probable cause to issue the warrant.
{¶ 17} Horton's affidavit states that a tip was received from a reliable confidential
informant that appellant was selling heroin out of 10 Stephens Street, Apartment 2. Law
enforcement took steps to corroborate this information by setting up a controlled buy using
the same confidential informant. Horton personally observed and monitored the buy,
checking to make sure the confidential informant did not have contraband or currency on the
informant's person before the buy. After the buy was complete, the confidential informant
handed over a plastic bag containing tan powder and told Horton that the bag was purchased
from appellant in Apartment 2. Law enforcement corroborated the informant's information by
field testing the contents of the plastic bag and by checking the tenant list of the apartment
building and the "OLIG" database to verify appellant's residency at 10 Stephens Street,
Apartment 2. These facts were all set forth in Horton's affidavit of probable cause. From
such facts, it is clear the confidential informant had specific information, which the informant
personally observed and which was corroborated by the law enforcement's own investigation,
that illegal activities involving trafficking in heroin was occurring at 10 Stephens Street,
Apartment 2. Accordingly, we find that the facts in the affidavit, when viewed together, were
sufficient to show there was a fair probability that contraband and evidence would be found at
10 Stephens Street, Apartment 2.
{¶ 18} In finding that the confidential informant possessed credible and reliable
information, we reject appellant's argument that this case is similar to State v. Davis, 166
-7-
Butler CA2013-08-158
Ohio App.3d 468, 2006-Ohio-1592 (2d Dist.). In Davis, the Second District found an affidavit
clearly insufficient to establish probable cause for a search. Id. at ¶ 4. The affidavit in Davis
indicated that a confidential informant was given money on four occasions to purchase drugs.
The informant then gave the money to another individual ("X"), who left the informant's
residence, went to the defendant's residence, and on two of the four occasions, returned with
cocaine to complete the transaction. Id. at ¶ 40. The affidavit in Davis did not provide any
information from which the informant's reliability could be determined as it did not indicate
that the affiant-law officer saw any of the relevant matters, including the informant giving X
the recorded buy money, X going from the informant's house to the defendant's residence, X
leaving the defendant's house, or X giving the informant cocaine. Id. at ¶ 44. Further, the
informant in Davis did not see X go with the defendant into a room and return with drugs.
There was also no indication the informant was checked for contraband and equipped with a
wireless transmitter prior to the buys, and there was no subsequent, independent
communications between X and the police to verify the information contained within the
affidavit. Id. at 46. Based on these deficiencies, the Second District concluded the affidavit
did not support a finding of probable cause. Id. at ¶ 45-46.
{¶ 19} The present case differs significantly from Davis, as Horton's affidavit does not
suffer from the same or similar infirmities. Horton, the affiant, was directly involved with the
informant, who bought the drugs and personally observed the drug transaction. Furthermore,
Horton searched the informant for contraband and money prior to the buy and observed and
monitored the informant as the informant entered appellant's apartment building to make the
buy. Following the controlled buy, the informant communicated his successful purchase of
heroin from appellant in Apartment 2, and Horton took steps to corroborate the informant's
information. We therefore conclude that, unlike in Davis, the facts set forth in Horton's
-8-
Butler CA2013-08-158
affidavit provided the issuing judge with a substantial basis to believe that probable cause
existed for a search warrant for 10 Stephens Street, Apartment 2.
Timeliness of the Information
{¶ 20} Appellant also argues the warrant was improperly issued as the affidavit did not
set forth the date the controlled buy occurred, therefore limiting the issuing judge's ability to
determine whether the information in the affidavit had gone stale. Appellant argues that
because the affidavit did not describe an ongoing drug operation, the timing of the controlled
buy was crucial for determining whether there was a fair probability that contraband or
evidence of a crime would be found at 10 Stephens Street, Apartment 2.
{¶ 21} "The law of search and seizure requires that an affidavit demonstrate that the
information is timely." State v. Harry, 12th Dist. Butler No. CA2008-01-0013, 2008-Ohio-
6380, ¶ 12, citing State v. Jones, 72 Ohio App. 3d 522, 526 (6th Dist.1991). The facts set
forth in the affidavit must be closely related to the time the warrant is issued in order to justify
a finding of probable cause. Id.; State v. Prater, 12th Dist. Warren No. CA2001-12-114,
2002-Ohio-4487, ¶ 11. These facts are examined on a case by case basis. Harry at ¶ 12.
"While there is no arbitrary time limit on how old information can be, the alleged facts must
justify the conclusion that the subject contraband is probably on the person or premises to be
searched." Id.
{¶ 22} Furthermore, "[a]lthough specific references to dates and times are best, there
is no hard and fast rule as to the staleness issue." State v. Proffit, 5th Dist. Fairfield No.
07CA36, 2008-Ohio-2912, ¶ 20. "In determining whether information in an affidavit is stale,
courts should consider: (1) the character of the crime; (2) the criminal; (3) the thing to be
seized, as in whether it 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
-9-
Butler CA2013-08-158
single isolated incident or protracted ongoing criminal activity." Harry at ¶ 13, citing Prater at
¶ 13.
{¶ 23} Horton's affidavit was executed on January 15, 2013, and the affidavit
specifically set forth that the confidential informant's controlled buy of heroin from appellant at
10 Stephens Street, Apartment 2 had occurred "within the past few days." Ohio courts have
routinely rejected staleness challenges and affirmed probable cause findings where the
language used in the affidavit to describe the time frame of a controlled buy is given in terms
of hours, days, or weeks. See, e.g., Moore, 2006-Ohio-4556 at ¶ 17-22 ("within the last 72
hours"); State v. Bailey, 12th Dist. Butler No. CA2002-03-057, 2003-Ohio-5280, ¶ 12 ("three
days prior" or "within 72 hours"); State v. Thymes, 9th Dist. Summit No. 22480, 2005-Ohio-
5505, ¶ 28 ("within the past three days"); State v. James, 8th Dist. Cuyahoga No. 95056,
2011-Ohio-1239, ¶ 28-34 ("within the past seventy-two hours"). This is especially true where
there is an indication of ongoing criminal activity. See Bailey at ¶ 12; Proffit, 2008-Ohio-2912
at ¶ 18-22 (finding that the "has been maintaining" language in the affidavit was sufficient to
establish ongoing criminal activity). Here, the affidavit specifies that appellant "has been
selling heroin from 10 Stephens Street #2." (Emphasis added.) From such language, the
issuing judge was entitled to find that ongoing criminal activity was occurring at 10 Stephens
Street, Apartment 2. Furthermore, from Horton's averments, the issuing judge was entitled to
conclude that within a few days of the warrant's January 15, 2013 application date, drugs
were located within the apartment as a controlled buy on the premises had occurred. The
information in the affidavit was, therefore, timely.
{¶ 24} Accordingly, we find that appellant's motion to suppress was properly denied.
Under a totality of the circumstances analysis, the affidavit filed in support of the warrant
provided a substantial basis for the issuing judge to conclude there was a fair probability that
- 10 -
Butler CA2013-08-158
drugs, drug related paraphernalia, and weapons would be found at 10 Stephens Street,
Apartment 2.
{¶ 25} Appellant's sole assignment of error is, therefore, overruled.
{¶ 26} Judgment affirmed.
RINGLAND, P.J., and S. POWELL, J., concur.
- 11 -