State v. Siegel , 2021 Ohio 4208 ( 2021 )

[Cite as State v. Siegel, 2021-Ohio-4208.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 20CA17
:
v. :
: DECISION AND
STEVEN A. SIEGEL, : JUDGMENT ENTRY
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
James A. Anzelmo, Anzelmo Law, Gahanna, Ohio, for Appellant.
Nicole T. Coil, Washington County Prosecuting Attorney, Marietta, Ohio, for
Appellee.
_____________________________________________________________
Smith, P.J.
{¶1} This is an appeal from a Washington County Common Pleas Court
judgment entry convicting Appellant, Steven A. Siegel, of one count of having
weapons while under disability, a third-degree felony in violation of R.C.
2923.13(A)(3) and sentencing him to a jointly recommended sentence of 24
months in prison. On appeal, Siegel raises seven assignments of error, contending:
1) that the trial court erred by denying his motion to suppress evidence that police
obtained in violation of his state and federal constitutional rights; 2) that his
conviction is based on insufficient evidence; 3) that his conviction is against the
Washington App. 20CA17 2
manifest weight of the evidence; 4) that the prosecutor committed misconduct by
intimidating his witness into not testifying; 5) that the trial court erred by admitting
into evidence his prior bad acts; 6) that the trial court abused its discretion by
admitting into evidence an unauthenticated social media post; and 7) that he
received ineffective assistance of counsel.
{¶2} Because we have found that the search warrant affidavit that was filed
in support of the search warrant for Siegel’s residence did not establish sufficient
probable cause for the warrant to be issued, and because we have further found that
a well-trained officer would have known that the search and seizure of the
residence was illegal because the search warrant affidavit supporting the search
failed to address the issue of the reliability and veracity of the informant, we
conclude the trial court erred in denying Siegel’s motion to suppress evidence.
Thus, because evidence seized pursuant to the search warrant should have been
suppressed, Siegel’s first assignment of error is sustained. Accordingly, the
judgment of the Washington County Court of Common Pleas is reversed and the
matter is remanded for further proceedings consistent with this opinion. Further,
because our disposition of Siegel’s first assignment of error is dispositive of this
matter, his remaining assignments of error have been rendered moot and we need
not address them.
Washington App. 20CA17 3
FACTS
{¶3} The following facts are pertinent to this appeal. Steven Siegel was
charged with having a weapon while under disability, a third-degree felony in
violation R.C. 2923.13(A)(3), after a firearm was found in his home in connection
with the execution of a search warrant. Siegel pleaded not guilty to the charge and
proceeded with the filing of a motion to suppress all evidence obtained from the
search that was executed pursuant to the warrant. In his motion, he argued that
there was no probable cause demonstrated to support the issuance of the search
warrant. More specifically, he argued that although law enforcement relied upon a
tip from an informant, the informant’s reliability was never established, nor was
the tip independently corroborated by law enforcement. Thus, he argued that
because the affidavit filed in support of the search warrant was legally insufficient,
the search warrant was invalid, and all evidence obtained from the warrant should
be suppressed. Siegel further argued the good faith exception to the exclusionary
rule did not apply.
{¶4} Seigel attached a copy of the search warrant as well as a copy of the
affidavit that was filed in support of the search warrant to his motion. At the
suppression hearing, the parties argued the motion based upon the four corners of
the affidavit and did not introduce any other evidence or witnesses. The affidavit
filed in support of the search warrant was prepared by Sergeant Eric Augenstein, of
Washington App. 20CA17 4
the Washington County Sheriff’s Office, on April 6, 2018. Although the contents
of the affidavit will be discussed more fully below, the affidavit essentially
referenced a tip by a known informant, Christopher Masten. Masten had been
arrested the previous day as a result of an investigation by the Parkersburg
Narcotics Task Force into the drug overdose death of an individual in Wood
County, West Virginia. Masten advised Agent McClung, with the task force, that
he regularly purchased heroin and meth from Siegel and that the heroin he had
supplied to the overdose victim had been purchased from Siegel. Masten advised
McClung that Siegel resided at #1, 8th Street in Belpre, Ohio, and that Siegel drove
both a red car and a gray SUV. Masten also told McClung that he had seen “a
pound of methamphetamine at Siegel’s residence in the past as well as a couple
ounces of heroin.”1
{¶5} Agent McClung contacted Sergeant Augenstein with this information.
As a result, Augenstein obtained a criminal history on Siegel, which included a
drug-related conviction from 2010 and an arrest for “delivery of a controlled
substance/drugs” that had not been disposed of and “appear[ed]” to be pending.
Augenstein then verified Siegel’s address by checking his Ohio Law Enforcement
Gateway (OHLEG) profile and prior “calls for service” with the Belpre Police
1
The warrant also explained that the Parkersburg Narcotics Task Force was “able to work the case back to the
supplier[,] which was Masten, and then the task force was “able to arrange a controlled buy on Masten and arrested
him during the buy.” It was at that point that Masten provided the task force with the information regarding Siegel.
Washington App. 20CA17 5
Department. Augenstein also drove by the residence and observed a maroon
Hyundai parked out front, which he verified was registered in Siegel’s name.2
{¶6} “Based upon his criminal history and the statement given by Masten,”
Augenstein averred that “agents will likely find drugs and drug paraphernalia in
the home at any given time.” A search warrant for Siegel’s residence was
thereafter issued and was executed by Sergeant Augenstein and other officers. It
appears that a firearm was found during the search of the residence, which Siegel
claimed did not belong to him, but had been left there by a friend the night before.
However, because Siegel had a prior felony conviction, he was charged with
having a weapon while under disability.
{¶7} The trial court ultimately denied Siegel’s motion to suppress,
explaining on the record during the hearing as follows:
I’m going to note in this case * * * we’re not dealing with a
confidential informant where they have to establish reliability.
In this case, we have a known and named informant. We also
know the named informant is involved in drug trafficking
activity. They actually caught Mr. Masten selling and buying
drugs. They were working their way upside the food chain. They
were able to confirm several things he said as far as address,
vehicle, things of that nature. Also, maybe more importantly
than anything, they also were able to confirm his CCH, that
showed a conviction for drug manufacturing or delivery of
2
Although the State’s brief contends that while conducting surveillance of the residence, law enforcement observed
Siegel and his girlfriend exit the residence and leave in the vehicle that had been identified by the informant as
belonging to Siegel, that testimony was not introduced until the jury trial of the matter. There was no evidence
introduced during the suppression hearing or contained in the affidavit in support of the search warrant indicating
that law enforcement had observed Siegel either entering or exiting the residence at issue while conducting
surveillance.
Washington App. 20CA17 6
narcotics, where he received a one to fifteen sentence in prison.
And it looks like he was just not too recently discharged from
supervision in 2017. So not only were they able to get the other
information; was able to confirm he was somebody who was
involved in drug manufacturing or delivery. So, the Court’s
going to have no problem finding there was probable cause to
exist for the search warrant, finds the affidavit is sufficient.
Therefore, I am going to deny the motion to suppress.
{¶8} Once the motion to suppress was denied, the matter proceeded to a jury
trial and Seigel was convicted of the sole count of having a weapon while under
disability, as charged in the indictment. It is from this conviction that Siegel now
brings his timely appeal, setting forth seven assignments of error for our review.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED IN DENYING SIEGEL’S
MOTION TO SUPPRESS EVIDENCE THAT POLICE
OBTAINED IN VIOLATION OF HIS STATE AND
FEDERAL CONSTITUTIONAL RIGHTS.
II. SIEGEL’S CONVICTION IS BASED ON
INSUFFICIENT EVIDENCE, IN VIOLATION OF
THE DUE PROCESS CLAUSE OF THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND SECTIONS 1 & 16,
ARTICLE I OF THE OHIO CONSTITUTION.
III. SIEGEL’S CONVICTION IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN
VIOLATION OF THE DUE PROCESS CLAUSE OF
THE FIFTH AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION AND
SECTIONS 1 & 16, ARTICLE I OF THE OHIO
CONSTITUTION.
Washington App. 20CA17 7
IV. THE PROSECUTOR COMMITTED MISCONDUCT
BY INTIMIDATING SIEGEL’S WITNESS INTO NOT
TESTIFYING, IN VIOLATION OF SIEGEL’S RIGHT
TO A FAIR TRIAL GUARANTEED BY THE FIFTH,
SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.
V. THE TRIAL COURT ERED BY ADMITTING INTO
EVIDENCE PRIOR BAD ACTS OF SIEGEL, IN
VIOLATION OF HIS DUE PROCESS RIGHTS UNDER
THE FIFTH AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION AND
SECTION SIXTEEN, ARTICLE ONE OF THE OHIO
CONSTITUTION.
VI. THE TRIAL COURT ABUSED ITS DISCRETION BY
ADMITTING INTO EVIDENCE AN
UNAUTHENTICATED SOCIAL MEDIA POST, IN
VIOLATION OF SIEGEL’S RIGHTS TO A FAIR
TRIAL AND DUE PROCESS GUARANTEED BY THE
FIFTH, SIXTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTUTITION AND
SECTIONS 1, 10 AND 16, ARTICLE I OF THE OHIO
CONSTITUTION.
VII. SIEGEL RECEIVED INEFFECTIVE ASSISTANCE
OF COUNSEL, IN VIOLATION OF THE SIXTH
AMENDMENT TO THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE I OF
THE OHIO CONSTITUTION.
ASSIGNMENT OF ERROR I
{¶9} In his first assignment of error, Siegel contends that the trial court erred
in denying his motion to suppress. More specifically, Siegel contends that because
police relied upon information provided by a known informant who was part of the
criminal milieu, they were required to either attest to the informant’s reliability,
Washington App. 20CA17 8
veracity, and basis of knowledge, or corroborate the informant’s tip through
independent police work. Siegel argues, however, that police neither investigated
the informant, nor performed an independent investigation. Thus, Siegel contends
that there was no probable cause to support the warrant and because there was no
probable cause to support the warrant, the good faith exception to the exclusionary
rule does not apply and the evidence obtained from the search warrant must be
suppressed. The good faith exception to the exclusionary rule will be discussed
below.
{¶10} The State contends that because law enforcement verified that Siegel
lived at the apartment and drove the vehicle which the informant identified, and
because law enforcement conducted surveillance of the apartment and saw Siegel
leaving the premises, there was independent confirmation of the information
provided by the informant.3 The State further argues that “[l]aw enforcement
confirmed what they could from the information provided by the informant[,]” and
that such action “constitute[d] independent investigation and corroboration on the
part of law enforcement prior to executing the search warrant.” Thus, the State
argues that the issuance of the search warrant should be upheld. The State
alternatively argues that, should this Court find that the search warrant was not
3
Again, although there was testimony introduced at trial that law enforcement observed Seigel leaving the residence
while they were conducting surveillance, no such allegation was contained in the affidavit that was filed support of
the search warrant.
Washington App. 20CA17 9
supported by probable cause, the evidence obtained from the search warrant should
not have been excluded based upon the good faith exception to the exclusionary
rule.
Standard of Review
{¶11} The standard of review of a decision addressing a motion to suppress
presents a mixed question of law and fact. State v. Ralston, 4th Dist. Highland No.
16CA9, 2017-Ohio-7057, ¶ 6. On review, we must accept the trial court's
determination of factual issues and evaluation of credibility of witnesses if
supported by competent, credible evidence. Id. However, accepting those facts as
true, we have a duty to conduct a de novo review of “whether the facts satisfy the
applicable legal standard.” Id., citing State v. Hobbs, 133 Ohio St.3d 43, 2012-
Ohio-3886, 975 N.E.2d 965, ¶ 6. See also State v. Klosterman, 114 Ohio App.3d
327, 333, 683 N.E.2d 100 (2d Dist.1996).
The Fourth Amendment
{¶12} “ ‘The Fourth Amendment to the United States Constitution and the
Ohio Constitution, Article I, Section 14, prohibit unreasonable searches and
seizures.’ ” State v. Taylor, 4th Dist. Lawrence No. 15CA12, 2016-Ohio-2781, ¶
31, quoting State v. Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d
787, ¶ 15. “The constitutional provisions contain nearly identical language and
have been interpreted to afford the same protection.” Taylor at ¶ 31, citing State v.
Washington App. 20CA17 10
Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795, 25 N.E.3d 993, ¶ 11. This
constitutional guarantee is protected by the exclusionary rule, which mandates that
evidence obtained from an unreasonable search and seizure be excluded from trial.
See Emerson at ¶ 15.
Search Warrants and Probable Cause
{¶13} This Court has described the following standards related to the
necessity of probable cause for the issuance of search warrants as follows:
A neutral and detached magistrate may issue a search warrant
only upon the finding of probable cause. United States v. Leon
(1984), 468 U.S. 897, 914-915, 104 S.Ct. 3405, 82 L.Ed.2d 677;
Crim.R. 41(C). In determining whether to issue a search warrant,
an issuing magistrate must scrutinize the affidavit in support of
the warrant and make a practical, common sense decision, in
light of all the circumstances set forth in the affidavit, including
the veracity and basis of knowledge of persons supplying
information, whether “ ‘there is a fair probability that contraband
or evidence of a crime will be found in a particular place.’ ” State
v. Gilbert, 4th Dist. Scioto No. 06CA3055, 2007-Ohio-2717, ¶
13, citing State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640(1989), paragraph one of the syllabus, quoting Illinois v. Gates,
462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
Probable cause requires the existence of circumstances that
warrant suspicion. George at 329. The standard for probable
cause requires a showing that a probability of criminal activity
exists—not a prima facie showing of criminal activity. Id. When
determining whether an affidavit in support of a search warrant
sufficiently supports a finding of probable cause, a reviewing
court must give great deference to the issuing magistrate's
decision. George at paragraph two of the syllabus; Gates at 237.
Further, “[a]lthough in a particular case it may not be easy to
Washington App. 20CA17 11
determine when an affidavit demonstrates the existence of
probable cause, the resolution of doubtful or marginal cases in
this area should be largely determined by the preference to be
accorded warrants.” United States v. Ventresca, 380 U.S. 102,
108, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Gates at 237, fn.
10; George at paragraph two of the syllabus. Thus, “a reviewing
court simply decides whether the affiant presented enough facts
to allow the issuing magistrate or judge to independently
determine the existence of probable cause.” Gates, supra, at 239.
The United States Supreme Court has instructed judges who
issue search warrants to consider the totality of the circumstances
in determining whether probable cause exists to believe that
evidence of a crime exists in a particular place. Gates at 238.
“The task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all the circumstances set
forth in the affidavit before him * * * there is a fair probability
that contraband or evidence of a crime will be found in a
particular place.” Id. The Supreme Court of Ohio adopted this
holding. See George, supra, paragraph one of the syllabus.
Therefore, both this court and the trial court must apply the same
standard to review the municipal court judge's determination of
probable cause, i.e., whether the affidavit provided a substantial
basis for the municipal court judge to conclude that a fair
probability exists that evidence of a crime would be found in the
place to be searched. Gates at 238; George at 325, 544 N.E.2d
640, see also, State v. Goddard, 4th Dist. Washington No.
97CA23, 1998 WL 716662 (Oct. 2, 1998).
(Emphasis added.) State v. Baker, 4th Dist. Washington No. 16CA30, 2018-Ohio-
762, ¶ 8-11.
{¶14} An assertion by an affiant that his or her informant was reliable alone
is not enough to support a finding of probable cause. See State v. Gill, 49 Ohio
St.2d 177, 360 N.E.2d 693 (1977). However, “[i]n reviewing the sufficiency of
Washington App. 20CA17 12
probable cause in an affidavit, neither a trial court nor an appellate court should
‘substitute [its] judgment for that of the issuing magistrate by conducting a de novo
determination’ as to the existence of probable cause.” State v. Landis, 12th Dist.
Butler No. CA2005-10-428, 2006-Ohio-3538, ¶ 15, quoting State v. George, supra,
at 330.
Classifications of Informants
{¶15} The Sixth District Court of Appeals recently explained the different
classifications of informants as follows:
* * * a citizen informant, who has witnessed criminal activity
and is presumed credible; a known informant, who is generally
part of the “criminal milieu” and the affiant must attest to the
informant's veracity, reliability, or basis of knowledge or must
independently corroborate the information; and an anonymous
informant, generally considered unreliable and requires
independent police corroboration. [State v.] Long, 2020-Ohio-
4090, 157 N.E.3d 362, at ¶ 24-27 [(6th. Dist.)].
(Emphasis added.) See State v. Connin, 6th Dist. Fulton No. F-20-005, 2020-Ohio-
6867, ¶ 18.
{¶16} The Connin court also described another category of informant that is
less common, which is “the identified or first-time informant who implicates
another while admitting his own criminal activity.” Id. at ¶ 19.
{¶17} Although Connin states, with respect to a known informant that is part
of the criminal milieu, that “the affiant must attest to the informant's veracity,
reliability, or basis of knowledge or must independently corroborate the
Washington App. 20CA17 13
information[,]” the requirements are improperly stated in the disjunctive.
(Emphasis added.) Id. at ¶ 18. Instead, the affiant must attest to the informant’s
veracity, reliability, and basis of knowledge, or must independently corroborate the
information. See State v. Kerns, 4th Dist. Highland No. 15CA6, 2016-Ohio-63, ¶
18 (“To determine whether the affidavit submitted in support of a search warrant
established probable cause, a magistrate must make a practical, common sense
decision based upon all the circumstances set forth in the affidavit, including the
‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, that
there is a fair probability that contraband or evidence of a crime will be found in a
particular place.”), citing State v. George, supra, at paragraph one of the syllabus,
quoting Illinois v. Gates, supra, at 238-239. See also, State v. Jones, 3d Dist.
Marion No. 9-20-04, 2020-Ohio-6667, ¶ 28 (“ ‘* * * a probable cause finding
based on a known informant’s tip requires that the affiant either attest to the
informant’s reliability, veracity, and basis of knowledge or corroborate the
informant’s tip through independent police work’ ”), quoting State v. Long, 6th
Dist. Wood No. WD-19-021, 2020-Ohio-4090, ¶ 26, in turn citing State Nunez,
180 Ohio App.3d 189, 2008-Ohio-6806, ¶ 19-20 (6th Dist.).
{¶18} Connin stated that, in the case of an identified or first-time informant
who implicates another while admitting his own criminal activity, “[t]he
admission of the criminal activity acts to bolster the informant’s credibility as a
Washington App. 20CA17 14
statement against penal interest.” Connin at ¶ 19, citing State v. Mendoza, 2019-
Ohio-3382, 142 N.E.3d 148 (10th Dist.) (holding that a first-time informant’s tip
“carried an indicia of credibility because he admitted to his own criminal activity”
because he disclosed he had drugs and a weapon at his residence, which police
were able to verify, and because he implicated himself in allegations made against
Mendoza) and State v. Oloff, 2d Dist. Greene No. 2012-CA-34, 2012-Ohio-6048, ¶
20. In reaching its decision, the Mendoza court noted that the United States
Supreme Court has stated that “an informant’s admission of criminal activity may
demonstrate the credibility of the informant’s statements[.]” (Emphasis added).
Mendoza at ¶ 15, citing United States v. Harris, 403 U.S. 573, 583-84, 91 S.Ct.
2075, 29 L.Ed.2d 723 (1971) (reasoning, in part, that “[p]eople do not lightly admit
a crime and place critical evidence in the hands of the police in the form of their
own admissions. Admissions of crime, like admissions against proprietary
interests, carry their own indicia of credibility―sufficient at least to support a
finding of probable cause to search”).
{¶19} However, the Mendoza court also noted cases in other districts that
refused to find probable cause in situations involving first-time informants that
were involved in criminal activity, without either the informant’s reliability being
demonstrated or corroboration through independent police work. See State v.
Dowler, 9th Dist. Medina No. 10CA0093-M, 2011-Ohio-4991, ¶ 15 (“Based on the
Washington App. 20CA17 15
fact that this was a confidential informant, who had not previously provided
information, the basis of his acquired knowledge was unknown, and he indicated
that he himself was involved in the criminal conduct, we conclude that he was not
a reliable source of information.”); State v. Shepherd, 122 Ohio App.3d 358, 366,
701 N.E.2d 778 (2d Dist.1997)( “In the case of a citizen-informant who is
victimized or merely witnesses a crime and reports it out of a sense of civic duty,
the police may be entitled to presume that the informer is reliable. * * * No such
faith is extended to an informant who * * * was[] privy to information solely
because he is himself implicated in criminal activity. * * * His information may be
relied upon only if the totality of the circumstances demonstrates that he is reliable
or his information concerning criminal conduct was corroborated through
independent police work”). Thus, in our view, while an admission of criminal
conduct by an identified or first-time, criminal informant may provide sufficient
probable cause for the issuance of a search warrant, that determination is highly
dependent on the unique facts of the case, and does not always lead to the
conclusion that probable cause was established. See generally State v. Poling, 4th
Dist. Hocking No. 91CA5, 1992 WL 38447, *2, (observing that “the ordinary
citizen who has never before reported a crime to the police may, in fact, be more
reliable that one who supplies information on a regular basis[,]” because “ ‘[t]he
latter is likely to be someone who is himself involved in criminal activity or is, at
Washington App. 20CA17 16
least, someone who enjoys the confidence of criminals’ ”), quoting State v. Harris,
supra, at 573. Furthermore, as explained in Maumee v. Weisner, 87 Ohio St.3d
295, 300, 720 N.E.2d 507, “the United States Supreme Court discourages
conclusory analysis based solely upon [the] categories * * *” of informants.
Legal Analysis
{¶20} In the case presently before us, a search warrant for Siegel’s residence
was issued by the Washington County Court of Common Pleas on April 6, 2018,
upon the affidavit of Sgt. Eric Augenstein, from the Washington County Sheriff’s
Office, who was contacted by Agent McClung, from the Parkersburg (West
Virginia) Narcotics Task Force, in reference to a drug overdose death that occurred
in West Virginia. McClung advised Augenstein that the task force had worked the
case back to a supplier named Christopher Masten and that they had arrested
Masten during a controlled buy. Upon his arrest, Masten informed McClung that
he had purchased heroin from Siegel in the last 2-3 days, that he had purchased 2
oz. of heroin from him the past week, that he purchases heroin and meth from
Siegel 1-2 times a week, and that he had recently purchased larger amounts from
him because he had come into some money. Masten informed McClung that the
deals are always set up via telephone call or text and that while he usually goes to
Siegel’s residence, sometimes Siegel brings the controlled substances to him.
Washington App. 20CA17 17
{¶21} Masten told McClung that he had been dealing with Siegel for two
years and that he purchases “ice” from him, which is methamphetamine. He
advised he had seen a pound of methamphetamine, as well as a couple of ounces of
heroin, at Siegel’s house “in the past.” He also told McClung that Seigel makes
trips to Columbus to purchase his controlled substances, which he then brings to
his house to sell locally. Masten told McClung that the heroin he had provided to
the overdose victim was purchased from Seigel. Masten told McClung that Siegel
lived on 8th Street in Belpre, Ohio, and he identified a Google Maps photo of the
residence. Masten also told McClung that Siegel drives a “red car” and “gray
SUV.”
{¶22} In his affidavit, Sergeant Augenstein averred that, based upon this
information, he obtained OHLEG and LEADS information from the CCH that
showed Siegel’s address as 114 Ellsworth Avenue, Marietta, Ohio, which was a
different address than that provided by Masten, and that he had a 2004 Hyundai
registered in his name that was “maroon in color.” Augenstein drove by 8th Street
in Belpre and observed “the Hyundai” sitting in front of the residence. He then
contacted the Belpre Police Department and confirmed that there had been “calls
for service” to the 8th Street address involving Siegel, including 2 prior domestic
violence complaints (December 29, 2017, and December 30, 2017). One of the
statements given in relation to one of the domestic violence calls was from a
Washington App. 20CA17 18
woman named Michelle Cyrus, who stated that she and Siegel had been living at
the address for four months. Augenstein then confirmed with the Washington
County Jail that Seigel “listed his address as 1 ½ 8th Street in Belpre when he was
booked in.”
{¶23} Augenstein’s affidavit also included information regarding Siegel’s
criminal history. He averred that the CCH included information indicating that
Siegel had three prior convictions: one for shooting across a road within 500 feet
of a dwelling in 2009; and two counts of drug manufacturing/delivery of narcotics
in 2010. Augenstein also averred that Siegel’s criminal history showed arrests for
“weapons brandishing, domestic battery, delivery of a controlled substance/drugs,
destruction of property, and counterfeit currency,” which did not show
dispositions, but “appear to be pending cases.” Thus, the criminal history included
a drug-related conviction from eight years prior, and a current drug-related arrest
that appeared to be pending. However, there was no information about the
underlying facts of the arrest, including the date of the arrest or where the matter
was pending, or the underlying facts that formed the basis of the arrest. Finally,
Augenstein averred that “[b]ased on his criminal history and the statement given
by Masten, agents will likely find drugs and drug paraphernalia in the home at any
given time.”
Washington App. 20CA17 19
{¶24} We conclude that the tip provided by Masten constituted a tip from a
known informant that was part of the criminal milieu and thus, Augenstein needed
to attest to the informant's veracity, reliability, and basis of knowledge or he had to
independently corroborate the information. There is simply no attestation to the
informant’s veracity or reliability in the affidavit. Augenstein did not aver that
either he or McClung had worked with Masten in the past or that he had previously
provided reliable information. The affidavit did include an averment of the
informant’s “basis of knowledge,” which was a first-hand account of his dealings
with Siegel and the fact that he had seen drugs in Siegel’s residence “in the past.”
However, although Augenstein averred that he independently corroborated
information from Masten regarding Siegel’s address and vehicle, he did not aver
that he or McClung conducted any surveillance of dealings between Masten and
Siegel, that he conducted any sort of a controlled buy involving Siegel, or that he
reviewed any text message conversations or monitored any telephone calls
between Masten and Siegel, which Masten alleged took place between the two.
Further, as will be discussed in more detail below, there is case law which states
that independent corroboration of residence and vehicle do not constitute evidence
of drug trafficking and do not provide probable cause for the purpose of obtaining
a search warrant. Thus, we are left with an unverified tip from a known criminal
informant, coupled with independent police corroboration of Siegel’s address and
Washington App. 20CA17 20
vehicle, and a criminal history of a drug trafficking conviction from eight years
prior, and a current, pending charge for “delivery of a controlled substance/drugs,”
without any additional information regarding when the charge was filed, where the
charge was filed, or the facts forming the basis of the charge.
{¶25} In State v. Baker, supra, this Court upheld a search warrant that was
issued on August 5, 2015, that was based upon information from a confidential
informant, as well as a law enforcement officer’s independent surveillance of a
hotel room. Baker at ¶ 20. The confidential informant in Baker essentially advised
there was suspicious activity in a hotel room that involved two black males and a
White/Hispanic female arriving and then meeting up with different sets of black
males for short periods of time. Baker at ¶ 12. Although the female stated she was
staying with the two black males, one of which was allegedly her boyfriend, she
didn’t know their names. Id. The informant was able to obtain the name of the
person who rented the room, which was Baker. Id. The detective then identified
Baker in the OHLEG system and averred that he also personally observed Baker in
and out of the room and that he matched the photo on OHLEG. Id. The detective
also averred that Baker and the female left the room and traveled to the residence
of a Taylor Kirby, who Narcotics Task Force officers stated was “moving very
large amounts of heroin.” Id. The detective averred that the task force had a
controlled buy set up with Kirby for that evening, and had also conducted a
Washington App. 20CA17 21
controlled buy from her two months prior. Id. After being shown a photo of
Kirby, the detective was able to identify her as the female he had seen in the hotel
room with Baker. Id. The detective’s affidavit also contained information
regarding Baker’s criminal history, which included seven arrests for drug
trafficking and four arrests for possession of drugs between 2008 and 2014, and a
2013 arrest for possession with intent to sell. Id. at ¶ 13. The affidavit also stated
that Baker was driving a rental car, was on parole and was involved in a gang. Id.
Citing the reliability of the information provided by the drug task force, the
detective’s independent corroboration of activity in the hotel room and his linking
of Baker to Kirby, as well as the fact a rental car is often indicia of drug activity,
this Court upheld the issuance of the warrant. Id. at ¶ 18.
{¶26} Compared to the case presently before us, we find that there were far
more facts lending themselves to probable cause in Baker than in the present case.
For example, the criminal history in Baker was far more extensive and seemed to
be recurrent over a period of years, law enforcement had reliable information from
other officers that had actually done substantive corroboration of one of the
defendant’s affiliates (Kirby) that involved a controlled buy and had another
controlled buy presently scheduled, and the affiant observed the defendant with
Kirby, who was a known drug dealer, at the hotel room. There was also an
Washington App. 20CA17 22
averment about a rental car and short visits in and out of the hotel room, in which
the affiant had personal knowledge and averred constituted indicia of drug activity.
{¶27} In State v. Connin, supra, the court upheld the issuance of a search
warrant issued on April 15, 2019, that was based upon an initial complaint by a
neighbor regarding a lot of traffic and short visits to a residence. Connin at ¶ 8.
Additionally, the affidavit in support of the warrant described the traffic stop of
another individual in January of 2019 in which marijuana was found, with the
driver stating he had obtained the marijuana from Connin, and with the officer
involved in the stop having personally observed the driver leaving Connin’s
residence. Id. at ¶ 9. The affidavit also referenced a police report from February
of 2019 where Connin was a passenger in a vehicle that was stopped and marijuana
was found. Id. The affidavit also described another traffic stop that occurred in
April of 2019 in which the driver was found to possess cocaine and marijuana and
stated he had bought both from Connin after work that day, and explained that he
buys from Connin weekly. Id. at ¶ 10. The Connin court categorized the April
2019 driver as an “identified or first-time informant who implicated another while
admitting his own criminal activity,” which the court stated bolstered the tip and
provided more reliability. Connin at ¶ 20. The court ultimately determined that
the informant’s statement, when viewed collectively with the other instances of
Washington App. 20CA17 23
drug activity set forth in the affidavit, provided a sufficient basis to support the
issuance of a search warrant. Id.
{¶28} Thus, in Connin, the issuance of the warrant was upheld based upon a
tip from a citizen informant, the statement of the identified informant whose basis
of knowledge included present drug activity, and three other instances of reported
drug activity. Importantly, as set forth above, the Connin court quoted the
requirements for an informant’s tip in terms of “or” instead of “and,” which is
incorrect. As explained above, an affidavit supporting the issuance of a search
warrant must contain an averment regarding the veracity, reliability, and basis of
knowledge of an informant. As also set forth above, in lieu of being able to make
such an averment, the reliability of the informant may also be established through
independent police work and corroboration. Further, in Connin, it appears that the
court’s categorization of the informant not necessarily as a “known informant part
of the criminal milieu,” but rather as a “first time informant who implicated
another while admitting his own criminal activity,” led to its determination that the
tip was more reliable.
{¶29} Here, as set forth above, in denying the motion to suppress the trial
court reasoned that because the case involved an identified informant, rather than a
confidential informant, that reliability need not be established. We find this
reasoning to be incorrect in light of the foregoing caselaw. Further, we conclude
Washington App. 20CA17 24
that Masten does not neatly fit into a single classification of informant. While he
was not necessarily a known informant, in the sense that law enforcement had
worked with him in the past and could attest to his reliability, he was an identified
informant. Further, he was certainly part of the criminal milieu, more so than the
informant in Connin, who was stopped for a traffic violation and was found to be
in possession of drugs which he volunteered to law enforcement had been obtained
from Connin. In the case presently before us, Masten was already being
investigated in connection with a drug overdose death. Further, he was arrested
not as part of a random traffic stop, but during a controlled buy of drugs. Thus,
Masten was clearly part of the criminal milieu in a way that Connin was not. As
such, we conclude that the tip provided by Masten was less reliable, standing on its
own, than the tip provided in Connin, and needed to be substantiated.
{¶30} In reaching its decision, the Connin court contrasted the facts before it
with the facts in State v. Williams, 173 Ohio App.3d 119, 2007-Ohio-4472, 877
N.E.2d 717, ¶ 13 (6th Dist.), which it had previously decided. The Williams case
involved an affidavit that referenced a prior search of Williams’ residence that
yielded “ ‘massive’ quantities of cocaine,” which the court noted was actually
identified, along with statements of four confidential informants who stated that
Williams had a large amount of pure cocaine at his residence, that he was married
to a teacher, and that he drove a green SUV with chrome rims. Id. at ¶ 15. The
Washington App. 20CA17 25
Williams court ultimately held that the affidavit failed to establish probable cause.
In reaching its decision, the court stated that although the affiant verified the
informant’s information regarding the vehicle driven by Williams and his
residence address, “[t]hese facts do not provide a verification of drug activity.” Id.
at ¶ 15. The court also stated that Williams’ “previous brush with the law,” that
occurred two years prior, was “not verification that current drug activity was
afoot.” Id. at ¶ 16. Importantly, in Williams, the court observed that although the
officer stated in his affidavit that “his investigation confirmed drug activity by
appellant and that the sources have been proven reliable[,]” that “[t]he affidavit
contained no statements providing indicia of either the veracity of the informants,
or the basis of knowledge.” Id. at ¶ 17. The court further explained that
“ ‘[f]iltering the hearsay statement of an informant through a law enforcement
agency establishes neither the truth of the statement nor the reliability of the
informant.’ ” Id. at ¶ 17, quoting State v. Dalpiaz, 151 Ohio App.3d 257, 270,
2002-Ohio-7346, 783 N.E.2d 976, ¶ 43.
{¶31} The Dalpiaz court explained as follows:
Although the United States Supreme Court, in Illinois v. Gates
(1983), 462 U.S. 213, 233, 103 S.Ct. 2317, 76 L.Ed.2d 527,
abandoned the two-pronged test for probable cause for issuance
of a search warrant set forth in Aguilar v. Texas (1964), 378 U.S.
108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States
(1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, of (1)
revealing the informant's basis of knowledge, and (2) providing
sufficient facts to establish either the informant's veracity or the
Washington App. 20CA17 26
reliability of the informant's report, those factors are still
“relevant considerations in the totality-of-the-circumstances
analysis that traditionally has guided probable-cause
determinations: a deficiency in one may be compensated for, in
determining the overall reliability of a tip, by a strong showing
as to the other, or by some other indicia of reliability.”
Dalpiaz at ¶ 35-37 (noting that not only did the affidavit at issue fail to suggest that
the information was obtained from reliable sources, the affidavit failed to attribute
much of the information to any particular source), quoting Illinois v. Gates at 233.
{¶32} Thus, the search warrant was found to be invalid in Williams despite
the fact that the affiant made a general averment that the informants were reliable.
In the case presently before us, the affidavit lacks even a general averment such as
that. Here, Sergeant Augenstein did not aver in any manner that Masten had been
determined to be truthful or reliable, or that Agent McClung had made such
representations either.
{¶33} In State v. Jones, 3d Dist., Marion No. 9-20-04, 2020-Ohio-6667, the
court upheld the issuance of a search warrant despite arguments that the criminal
history was stale, there was not a sufficient nexus between information provided
and Jones’ residence, and that tips from a confidential informant and an
anonymous source were not sufficiently credible. The court found that the
affidavit at issue contained facts indicating a continuous course of drug trafficking
over a period of years, which could be inferred from the affiant’s recitation of
Jones’ historical information and prior drug convictions, as well as drug activity
Washington App. 20CA17 27
leading up to the day of the issuance of the warrant. Id. at ¶ 6. Regarding the
arguments about the reliability of the informants, the court discussed the three
categories of informants and opined that the informants fell under either the
anonymous informant or known informant category, both of which require police
to provide “a certain level of corroboration for the information.” Id. at ¶ 30. In
upholding the search warrant, the court observed that “ ‘a known informant’s word
cannot be the sole basis for a finding of probable cause[,]’ ” and that “ ‘any
information from an anonymous source generally requires independent police
corroboration in order to support a probable-cause finding.’ ” Id. at ¶ 28-29,
quoting State v. Long, supra, at ¶ 26 and Maumee v. Weisner, supra, at 300 (1999),
in turn citing Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412 (1990).
{¶34} The Jones court ultimately found there was sufficient probable cause
because 1) the detective described a controlled buy with Jones’ brother, who the
confidential informant reported was dealing drugs for Jones; 2) other statements
made by the confidential informant were corroborated by information provided by
the known informant, who was Jones’ affiliate; 3) the affidavit contained an
averment that the source of the information was reliable, had worked with
detectives in the past, and “had been proven reliable based off their previous work
* * *;” 4) the detective’s review of a cell phone owned by Jones’ affiliate which
revealed drug-related texts between the affiliate and Jones; and 5) the detective’s
Washington App. 20CA17 28
observation of Jones frequenting the affiliate’s residence for short periods of time,
which the detective averred was consistent with “drug or money transactions.”
Jones at ¶ 31-33.
{¶35} The Jones decision establishes two things that are noteworthy. First,
the decision specifically states that “ ‘when used in connection with other
evidence, a suspect’s criminal history can support a determination of probable
cause.’ ” Id. at ¶ 22, quoting State v. Shepherd, 4th Dist. Scioto No. 07CA3143,
2008-Ohio-5355, ¶ 11. In the present case, while Siegel’s criminal history (drug
conviction eight years prior and current pending charge), in connection with other
evidence, may support a determination of probable cause, there is no “other
evidence” in the present case aside from the unsubstantiated word of a known,
criminal informant. The only pieces of information the affiant in our case
substantiated were that Siegel lived at a certain address and drove a certain car. As
set forth in Williams, supra, corroboration of a residence and vehicle do not
provide verification of drug activity. Williams at ¶ 15. Second, the Jones decision
correctly states the requirements for a criminal informant’s tip to be considered as
probable cause. In particular, Jones states as follows: “ ‘Consequently, a
probable-cause finding based on a known informant’s tip requires that the affiant
either attest to the informant’s reliability, veracity and basis of knowledge or
corroborate the informant’s tip through independent police work.’ [Jones at ¶ 28,
Washington App. 20CA17 29
citing State v. Long, supra, at ¶ 26,] citing Nunez, supra, at ¶ 19-20. ‘That is, a
known informant’s word cannot be the sole basis for a finding of probable cause.’
” Id. Nunez explains that “even under the totality-of-the-circumstances standard,
an affidavit in support of a search warrant must contain ‘the presence of some
indicia of veracity of the informant or the reliability of the information material to
the probability of evidence of crime.’ ” Nunez at ¶ 19, quoting State v. Williams,
supra.{¶36} Finally, in State v. Kiser, 6th Dist. Sandusky No. S-14-024, 2015-
Ohio-3076, a case which is heavily relied upon by Siegel, the appellate court
reversed the lower court and found that the affidavit in support of the search
warrant was insufficient. Kiser at ¶ 1. Kiser’s motion to suppress argued that the
affiant police officer failed to provide the basis for the confidential informant’s
reliability for the search, or for specific instances where the confidential informant
was reliable in aiding other police investigations. Id. at ¶ 3. Kiser relied on State
v. Williams, supra, in support. The State argued that the confidential informant’s
reliability was shown by the officer’s statement that the informant had provided
information and services to the Sheriff’s Office on several prior occasions which
the officer was able to verify as true. Id. at ¶ 4. The State also argued the
confidential informant’s basis of knowledge was demonstrated by the fact that he
had been to Kiser’s home in the prior 24 hours and had personally observed the
Washington App. 20CA17 30
contraband. Id. The motion was, however, denied by the trial court. Id. at ¶ 5. A
review of Kiser indicates that the probable cause affidavit essentially stated that a
confidential informant informed law enforcement that he had been in contact with
a third person who had arranged to purchase drugs from Kiser at Kiser’s residence,
and that within hours of that contact, the confidential informant personally made
contact with Kiser at Kiser’s residence, where Kiser showed the informant large
amounts of cocaine. Id. at ¶ 12. In reversing the judgment of the trial court, the
appellate court quoted Illinois v. Gates for the “ ‘veracity’ and ‘basis of
knowledge’ ” requirement. Id. at ¶ 11. Although the court noted that it was not
permitted to conduct a de novo analysis, the court nevertheless concluded the
totality of the circumstances failed to support the probable cause basis for the
issuance of the search warrant because the confidential informant’s reliability was
not established or independently corroborated by police investigation. Id. at ¶ 18-
19. In reaching its decision, the Kiser court contrasted the facts of the case with
other cases where the averments contained in the affidavit specifically described
how an informant had been determined to be reliable in other cases. Id. at ¶ 13-16.
{¶37} Although this Court is mindful that it is not permitted to conduct a de
novo review of the affidavit to determine whether it contains sufficient probable
cause, after reviewing the relevant law and the affidavit in this case, we must
conclude that the totality of the circumstances fails to support the probable cause
Washington App. 20CA17 31
basis for the issuance of the search warrant. In our view, based upon the foregoing
caselaw, we conclude that whether the informant is anonymous, confidential,
known and part of the criminal milieu, or a first-time, identified informant who
implicates himself while implicating others, there must be some indicia of
reliability demonstrated. For anonymous, confidential and known informants who
are part of the criminal milieu, the indicia of reliability may be demonstrated either
through representations by the affiant regarding his/her specific experience with
the informant, or another member of law enforcement’s specific experience with
the informant, or, in lieu of such an averment, the reliability of an informant may
be determined through independent police work. See State v. Abernathy, 4th Dist.
Scioto No. 07CA3160, 2008-Ohio-2949, ¶ 26, citing Maumee v. Weisner, supra, at
299-300, in turn citing Alabama v. White, supra, at 329 and Illinois v. Gates, supra,
at 233-234; State v. Jones, supra, at ¶ 28-30, citing State v. Long, supra, at ¶ 26,
State v. Nunez, supra, at ¶ 19-20, Maumee v. Weiser, supra, at 300, and Alabama v.
White, supra, at 329. It appears that the only category of informant whose
statement is viewed as inherently reliable is that of a citizen informant.
{¶38} Here, the reliability of the informant was neither established nor was
it independently corroborated by independent police work. Again, although
Sergeant Augenstein did independently verify Seigel’s address and vehicle, as set
forth above, those facts do not constitute indicia of drug activity. Further, although
Washington App. 20CA17 32
Seigel’s criminal history can be considered in connection with other evidence, the
only other indicia of drug activity in the record is an unverified tip from an
informant, who was a criminal himself. Moreover, Siegel’s sole drug-related
conviction was from 8 years prior and there was no information regarding the basis
of the now-pending drug charge. Additionally, although the informant stated he
had seen drugs present at Siegel’s residence “in the past,” that does not constitute
indicia of present drug-related activity. Finally, and importantly, the affiant in the
present case made no attempt at all to even reference the informant’s reliability.
{¶39} In fact, we find that Siegel’s counsel correctly summed up the facts
before the court at that suppression hearing as follows:
But the officer in this case, when he submitted his affidavit, he
should have done some investigation to determine whether or not
there was any drug activity at Mr. Siegel’s case [sic]. Because
anybody could say – especially someone that had no reliability
with the State before in the past – their – their individual in this
– in this particular case, had no prior history of, you know,
providing information to the State or providing reliable
information about any kind of drug activity – anybody could just
say, you know, I bought drugs from so-and-so, and he lives at
such-and-such an address. And then the police go and they
investigate and the guy lived at the address and he had some
criminal history. And essentially, they got a warrant based upon
those set of facts. In my opinion, and I believe in at least one
Court’s opinion in the State of Ohio, that’s not sufficient, because
you have to take the additional step of confirming whether or not
there’s drug activity at the residence. That was not done here.
They just simply relied upon the information of an – of a person
that they had arrested on a drug buy, that they had no prior history
with whatsoever.
Washington App. 20CA17 33
{¶40} In light of the foregoing, we find this case aligns very closely with
State v. Williams and State v. Kiser, supra, which both found search warrants to be
invalid because they were not founded upon probable cause. Thus, we must next
determine whether the good faith exception to the exclusionary rule applies.
The Exclusionary Rule and the Good Faith Exception
{¶41} “When evidence is obtained in violation of the Fourth Amendment,
the judicially developed exclusionary rule usually precludes its use in a criminal
proceeding against the victim of the illegal search and seizure.” State v. Johnson,
48 Ohio App.3d 256, 259, 549 N.E.2d 550 (4th Dist. 1988), citing Illinois v. Krull,
480 U.S. 340, 347, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987); Weeks v. United States,
232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Mapp v. Ohio, 367 U.S. 643, 81
S.Ct. 1684, 6 L.Ed.2d 1081 (1961). However, the exclusionary rule does not “bar
evidence obtained by law enforcement officers acting in objectively reasonable
reliance on a search warrant issued by a detached and neutral magistrate, even
though the warrant was ultimately found to be unsupported by probable cause.”
State v. Owens, 3rd Dist. Marion, 2017-Ohio-2590, 90 N.E.3d 189, ¶ 20-21, citing
State v. George, supra, at 330; United States v. Leon, supra, at 913.
“The deterrent purpose of the exclusionary rule necessarily
assumes that the police have engaged in willful, or at the very
least negligent, conduct which has deprived the defendant of
some right. * * * Where the official action was pursued in
complete good faith, however, the deterrence rationale loses
much of its force.”
Washington App. 20CA17 34
Leon at 919, quoting Michigan v. Tucker, 417 U.S. 433, 447, 94 S.Ct. 2357, 41
L.Ed.2d 182 (1974).
{¶42} Nevertheless, under the good faith exception to the exclusionary rule,
suppression remains an appropriate remedy in four circumstances: 1) the
magistrate was misled by information in an affidavit that the affiant knew was false
or would have known was false except for his reckless disregard of the truth; 2) the
issuing magistrate wholly abandoned his judicial role; 3) an officer purports to rely
upon a warrant based on an affidavit “so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable;” or 4) the warrant may
be so facially deficient that the executing officers cannot reasonably presume it to
be valid. State v. George, supra, at 331, citing Leon at 923.
{¶43} In State v. Keefer, 2019-Ohio-2419, 138 N.E.3d 519, ¶ 29 (4th Dist.),
this Court noted that the law was unsettled as to whether a reviewing court may
look beyond the four corners of the affidavit in determining whether the good faith
exception to the exclusionary rule applies. However, this Court sided with the
appellate districts that permit trial courts to look beyond the affidavit to determine
the good faith exception. For instance, in Keefer we agreed “that permitting a
court to look beyond the affidavit to determine whether the good faith exception
applies ‘ “ ‘is consistent with the statement in Leon that ‘all of the circumstances’
may be considered in determining whether a reasonably well-trained police officer
Washington App. 20CA17 35
would have known that the search was illegal despite the magistrate's
authorization.” ’ ” Keefer at ¶ 30, quoting State v. Berry, 5th Dist. Delaware No.
2006CA0600035, 2007-Ohio-4122, ¶ 43, in turn quoting Leon, supra. Since
Keefer was decided, the Supreme Court of Ohio addressed the issue and ultimately
determined that a court may look to information outside the four corners of the
affidavit when evaluating an officer's good faith reliance on a warrant. State v.
Dibble, 159 Ohio St.3d 322, 2020-Ohio-546, 150 N.E.3d 912, ¶ 20.
{¶44} Here, however, there is nothing in the record to suggest that the judge
who authorized the search warrant, or the judge who heard the suppression motion,
considered anything beyond the four corners of the affidavit itself. If testimony
was taken, it is not part of the record before us, unlike the situation in Keefer,
where the executing officer testified during the suppression hearing “that he relied
upon the prosecutor and the judge to acquire the warrant * * *.” Keefer, supra, at ¶
40. What is apparent from the record, however, is that Sergeant Augenstein was
the officer who supplied the affidavit in support of the search warrant, and he was
also the officer who executed the search of the residence, along with other officers.
See State v. Dalpiaz, supra, at ¶ 40 (noting the fact that the same officer obtained
the search warrant and also executed the search warrant was “particularly apt” in
holding that the good faith exception to the exclusionary rule did not apply).
Because we also find this factor “particularly apt” in the present case, we not only
Washington App. 20CA17 36
find that the affidavit failed to demonstrate probable cause in support of the
issuance of the search warrant, we further conclude that the affidavit in support of
the search warrant was “so lacking in indicia of probable cause” that it rendered
official belief in its existence entirely unreasonable. Thus, Sergeant Augenstein’s
reliance upon the warrant was not objectively reasonable.
{¶45} Here, Sergeant Augenstein did not simply execute a warrant in
reliance upon the judge having determined that the underlying affidavit in support
contained sufficient probable cause, he himself authored the affidavit that was filed
in support of the search warrant. We conclude that the affidavit at issue here was
so lacking in indicia of probable cause that a reasonably well-trained police officer
would have known that the search was illegal despite the judge’s authorization. As
observed in State v. Williams, supra, “the good-faith exception * * * is not a
license to give an otherwise insufficient warrant validity.” Williams at ¶ 26.
Sergeant Augenstein, who we presume is a reasonably well-trained officer, would
have known, or at least should have known, that this affidavit was not sufficient
and, as such, the facts presently before us warrant application of the exclusionary
rule and do not fit within the good faith exception to the rule.
{¶46} We hold, therefore, that Siegel’s first assignment or error has merit
and that the trial court erred in denying his motion to suppress. Accordingly, the
judgment of the trial court is reversed and this cause is remanded for further
Washington App. 20CA17 37
proceedings consistent with this opinion. Further, because our resolution of
Siegel’s first assignment of error is dispositive of this matter, his remaining
assignments of error have been rendered moot and we do not reach them.
JUDGMENT REVERSED AND CAUSE REMANDED.
Washington App. 20CA17 38
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED AND CAUSE
REMANDED and costs be assessed to Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Washington County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed 60 days upon
the bail previously posted. The purpose of a continued stay is to allow Appellant
to file with the Supreme Court of Ohio an application for a stay during the
pendency of proceedings in that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or the failure of the
Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Hess, J. and Wilkin, J. concur in Judgment and Opinion.
For the Court,
_______________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.