State v. Arthur , 2021 Ohio 104 ( 2021 )

[Cite as State v. Arthur, 2021-Ohio-104.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellant Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 2020 CA 00075
JENNA ARTHUR
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 20 CR 1714C
JUDGMENT: Affirmed in Part; Reversed in Part and
Remanded
DATE OF JUDGMENT ENTRY: January 19, 2021
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JOHN D. FERRERO FREDRICK PITINII
PROSECUTING ATTORNEY 101 Central Plaza S
KRISTINE W. BEARD Suite 1000
ASSISTANT PROSECUTOR Canton, OH 44702
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2020 CA 00073 2
Wise, J.
{¶1} Appellant, State of Ohio, appeals the judgment of the Stark County Court of
Common Pleas granting the motion to suppress evidence of Appellee Jenna Arthur. The
relevant facts leading to this appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 22, 2019, Detective Dadisman applied for a search warrant
before a Massillon Municipal Court Judge for the residence of Paul Madison, located at
1384 Huron Road SE, Massillon, Ohio. Detective Dadisman alleged he had made three
controlled buys through a confidential informant either at the residence or with Madison,
under the supervision of the Special Investigations Unit. The judge found probable cause
to issue a search warrant for Madison’s residence, the property’s curtilage, the enclosed
front porch, the adjoining apartment complex, safes, and all lock boxes or containers.
{¶3} Prior to executing the search warrant, Massillon Police officers placed the
residence under surveillance. During the surveillance, the officers observed Madison and
Appellee enter a white Saab and drive away from the residence. At the edge of the
allotment, Detective McConnell initiated a traffic stop. Detective Dadisman arrived shortly
thereafter and assisted. Both Madison and Appellee were asked to step out of the vehicle
and were detained. Dadisman testified he had been told Madison had a gun and
Dadisman assumed he was armed. Dadisman performed a search of the area for officer
safety.
{¶4} Madison and Appellee were read Miranda warnings, and both were patted
down for weapons. Dadisman advised Madison they had a search warrant for his
residence, and they would be detaining him. A vial of cocaine was found on Madison.
Stark County, Case No. 2020 CA 00075 3
{¶5} During the pat down of Appellee, Detective Dadisman asked if she was in
possession of any drugs or weapons. She was combative and did not comply at first. As
Appellee was being escorted back to the police cruiser, Dadisman informed her a female
officer would conduct a second, more thorough pat down. At this point, Appellee stated
she would cooperate and that she had drugs in her possession. Appellee then removed
one bag containing 13 baggies of cocaine from her vagina. The bags contained 39.7
grams of cocaine. Madison, Appellee’s father, told the officers that the drugs in Appellee’s
personal possession belonged to him.
{¶6} Madison and Appellee were placed under arrest. The Saab was impounded
and inventoried. No drugs were found in the vehicle. Appellee was transported to the
Massillon City Jail. Detective Dadisman placed Madison in an unmarked car and returned
to Madison’s residence to execute a search warrant. Prior to the search, Madison advised
the officers there were drugs in the bedroom he shared with April Philabaum.
{¶7} When the officers approached the house to execute the search warrant,
Philabaum came out of the residence. Dadisman advised Philabaum they had a search
warrant for the residence. Officers entered the residence through an unlocked door and
commenced the search. The search warrant was executed at approximately 5:23 P.M.
on August 22, 2019.
{¶8} During the search, officers found cocaine in a bedroom night stand, a small
drawer, and a small safe. They also found drug paraphernalia in Appellee’s bedroom. In
total, 572.86 grams of cocaine were seized from the residence.
{¶9} On October 4, 2019, Appellee was indicted for six felony counts of
Trafficking in and Possession of Cocaine.
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{¶10} On November 13, 2019, Appellee filed a motion to unseal the warrant
affidavit.
{¶11} On December 4, 2019, Philabaum filed a motion to suppress any and all
evidence seized as a result of the execution of the search warrant. Appellee and Madison
joined the suppression motion. Appellee argued the affidavit supporting the warrant was
insufficient to establish probable cause to search the residence, the good faith exception
should not apply, and that officers lacked reasonable suspicion to stop the vehicle in
which Appellee was riding.
{¶12} At the suppression hearing on December 23, 2019, the defense argued that
the affidavit in support of the warrant was insufficient to establish probable cause for two
reasons. First, the affidavit did not include specific dates of the controlled drug buys.
Second, the affidavit did not identify the confidential informant.
{¶13} Counsel for Madison and Appellee argued that the stop of the vehicle and
the detention and pat down of Madison and Appellee violated the Fourth Amendment
because the search warrant did not include Madison’s vehicle, and no reasonable
suspicion of criminal activity existed to otherwise justify the stop. Madison and Appellee
also argued the officers had no advanced knowledge that the suspects were armed and
therefore could not argue the pat down of Madison and Appellee was for officer safety.
{¶14} After the presentation of evidence, the State filed a response based on the
arguments and the evidence presented at the hearing. The State argued that the affidavit
in support was sufficient, and if the court found otherwise, that in the alternative, the good-
faith exception applied. The State further argued there were reasonable, articulable
suspicions for the stop of Madison’s vehicle, and the stop was valid as being within the
Stark County, Case No. 2020 CA 00075 5
vicinity of the search and as incident to the execution of the search warrant. Finally, the
State argued that the drugs which Appellee consensually handed to the officers were
otherwise admissible.
{¶15} The defendants filed supplemental briefs setting forth as a new argument
that the officers did not have an articulable, reasonable suspicion of criminal activity to
effect the traffic stop of Madison’s vehicle.
{¶16} The trial court granted the defendants’ motion to suppress. In support of the
decision, the trial court found that the affidavit did not contain sufficient facts to support
the inferential conclusion reached by Detective Dadisman or to enable the issuing court
to conduct an independent review of his conclusions. The trial court further held the
affidavit, which did not provide underlying facts regarding the veracity, reliability and basis
for Detective Dadisman’s suspicions, beliefs, and conclusions. The trial court also
determined that the search warrant was facially deficient such that Detective Dadisman
could not presume its validity. Therefore, the good-faith exception did not apply.
{¶17} The trial court finally held that the search warrant did not include the
authority to stop Madison’s vehicle, and that the officer’s testimony did not support the
conclusion that the officer had a reasonable, articulable suspicion that the occupants of
the vehicle were engaged in criminal activity. The trial court did not specifically address
the State’s argument that even if the affidavit in support was insufficient, the evidence
was otherwise admissible.
ASSIGNMENTS OF ERROR
{¶18} On April 6, 2020, Appellant filed a notice of appeal and herein raises the
following six Assignments of Error:
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{¶19} “I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY
GRANTING THE APPELLEE’S MOTION TO SUPPRESS ON NEW GROUNDS.
{¶20} “II. THE TRIAL [sic] ABUSED ITS DISCRETION IN FINDING THAT THE
AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT FOR MADISON’S RESIDENCE
USURPED THE JUDGE’S INFERENCE-DRAWING AUTHORITY.
{¶21} “III. THE TRIAL [sic] ABUSED ITS DISCRETION IN GRANTING THE
MOTION TO SUPPRESS FINDING THAT THE AFFIDAVIT IN SUPPORT WAS
INSUFFICIENT FOR THE REVIEWING COURT TO REASONABLY INFER THAT
ILLEGAL NARCOTICS AND EVIDENCE OF DRUG TRAFFICKING WOULD BE FOUND
IN MADISON’S RESIDENCE.
{¶22} “IV. THE TRIAL COURT ERRED IN FINDING THAT THE EVIDENCE
SHOULD BE SUPPRESSED BECAUSE THERE WAS NO REASONABLE
JUSTIFICATION FOR THE TRAFFIC STOP.
{¶23} “V. THE TRIAL COURT ERRED IN FAILING TO FIND IN THE
ALTERNATIVE THAT THE GOOD FAITH EXCEPTION TO THE WARRANT
REQUIREMENT APPLIED IN THIS CASE.
{¶24} “VI. THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE
COCAINE HIDDEN ON ARTHUR’S PERSON WAS OTHERWISE ADMISSIBLE.”
Standard of Review
{¶25} The Fourth Amendment to the United States Constitution and Section 14,
Article I, Ohio Constitution, prohibit the government from conducting unreasonable
searches and seizures of persons or their property. See Terry v. Ohio (1968), 392 U.S.
Stark County, Case No. 2020 CA 00075 7
1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565
N.E.2d 1271.
{¶26} Appellate review of a motion to suppress is a mixed question of law and
fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶8. The trial
court is the finder of fact in evaluating a motion to suppress; therefore, it is in the best
position to resolve factual questions and evaluate the credibility of witnesses. Id. The trial
court’s findings of fact must be accepted by an appellate court if they are supported by
competent, credible evidence. Id. “Accepting facts as true, the appellate court must then
independently determine, without deference to the conclusion of the trial court, whether
the facts satisfy the applicable legal standard.” Id. That is, the appellate court will review
the application of the legal standard to the facts de novo. Id.{¶27} There are three methods of challenging a trial court’s ruling on a motion to
suppress on appeal. State v. Goins, 5th Dist. Morgan No. 05-8, 2006-Ohio-74, ¶10. First,
an appellant may challenge the trial court’s finding of fact. Id. Second, an appellant may
argue the trial court failed to apply the appropriate test or correct law to the findings of
fact. Id. Finally, an appellant may argue the trial court has incorrectly decided the ultimate
or final issue raised in the motion to suppress. Id. When reviewing this type of claim, an
appellate court must independently determine, without deference to the trial court's
conclusion, whether the facts meet the appropriate legal standard in any given
case. State v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994).
Stark County, Case No. 2020 CA 00075 8
I.
{¶28} In Appellant’s First Assignment of Error, Appellant argues the trial court
committed reversible error by granting Appellee’s Motion to Suppress on grounds not
presented by the Appellee. We disagree.
{¶29} A motion to suppress evidence must make clear the grounds upon which
the motion is based in order that the prosecutor may prepare his case and the court may
know the grounds of the challenge in order to rule on evidentiary issues at the hearing
and properly dispose of the merits. Xenia v. Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d
889 (1988). Crim.R. 47 specifies that a motion to the trial court “shall state with
particularity the grounds upon which it is made and shall set forth the relief or order
sought.” “The Supreme Court [of Ohio] has stated that ‘this provision, in the context of the
ruling case law and when applied to a motion to suppress evidence obtained by search
and seizure, requires that the prosecution be given notice of the specific legal and factual
grounds upon which the validity of the search and seizure is challenged.’ ” State v. Byrnes,
2nd dist. Montgomery No. 25860, 2014-Ohio-1274, ¶10, quoting Dayton v. Dabney, 99
Ohio App.3d 32, 37, 649 N.E.2d 1271 (2d Dist.1994), quoting Wallace at 219.
{¶30} However, a trial court may expand the scope of a suppression hearing
beyond the issues specified by the defendant’s motion to suppress “so long as the matters
within the expanded scope were material to the suppression sought, and so long as the
State had a reasonable opportunity to prepare itself for the hearing.” Byrnes at ¶12.
{¶31} If a trial court grants a motion to suppress based on an issue outside the
expanded scope of the motion, the state may not have been given the opportunity to
adequately prepare arguments and present evidence on that issue, and the trial court
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would err in granting the motion to suppress on that basis. State v. Skeens, 5th Dist.
Tuscarawas No. 2017 AP 11 0030, 2018-Ohio-1610, ¶16. Therefore, the question is
whether the prosecutor had notice of the issue and was given an opportunity to prepare
and present arguments on the issue. Id.{¶32} In Dabney, the court concluded that the trial court interjected “a new issue
which was not supported by any evidence whatsoever, and basing its decision to
suppress the evidence on th[at] issue * * * was prejudicial error to the city.” Dabney at 39.
{¶33} In this case, Appellee’s, Madison’s, and Philabaum’s collective suppression
motions were based on the inadequacy of the underlying affidavit to establish probable
cause, and a lack of a good faith exception. Appellant argues that none of the defendants
argued in their joint motions to suppress and/or at the hearing that the affidavit in support
of the search warrant usurped the judge’s inference-drawing authority. While the trial
court does discuss the search warrant usurping the judge’s inference-drawing authority,
this is because, and the trial court stated, the search warrant lacked sufficient facts to
support affiant’s conclusions and findings of probable cause. Therefore, we find the state
had a reasonable opportunity to prepare and present arguments on the issue of the
sufficiency of the facts presented in the affidavit to establish probable cause.
{¶34} Appellant’s First Assignment of Error is overruled.
II.
{¶35} In Appellant’s Second Assignment of Error, Appellant argues the trial court
abused its discretion in finding that the affidavit in support of the search warrant for
Madison’s residence usurped the judge’s inference-drawing authority. We disagree.
Stark County, Case No. 2020 CA 00075 10
{¶36} Affidavits that include a factual narrative will inevitably include a number of
inferences drawn by the affiant. State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565,
46 N.E.3d 638, ¶40. The facts upon which those inferences are based must be disclosed
in the affidavit to permit a magistrate’s independent review. Id. The reviewing court must
determine whether the inference was “ ‘so significant as to cross the line between
permissible interpretation and usurpation’, considering the relevance and the complexity
of the undisclosed inference.” Id. at ¶56.
{¶37} Next, the reviewing court must consider the affiant’s animus. If the affiant
negligently usurped the magistrate’s inference drawing authority, then the reviewing court
must “excise the inference, insert the omitted underlying facts, and reassess the affidavit
for probable cause.” Id.
{¶38} The affidavit states, “[t]he Detective has prior knowledge in the past few
months of drug activity taking place at the listed residence and from the residence.”
State’s Exhibit 2. In support of this inference the affiant states, “[a] Confidential informant,
along with the controlled monitoring of The Special Investigation Unit, has made three
controlled buys from the residence and or the defendant.” Id. However, it does not discuss
the procedure followed for the controlled buys, the detail on whether each buy was made
with Madison, at his residence, or some combination, and does not even disclose dates
for the first two buys. We are left with very few facts, just that one “controlled buy” took
place either at the residence of Madison or with Madison himself on August 22, 2019, and
two controlled buys took place at some point in time before August 22, 2019. Finally, the
affidavit makes one final inference, “[d]etectives gained the knowledge that PAUL J.
MADISON is using this home to sell and or maintain drugs directly from the residence.”
Stark County, Case No. 2020 CA 00075 11
Id. In order for a magistrate to review this inference, the underlying facts must be
disclosed.
{¶39} Next, we consider the animus of the affiant. Nothing in the record indicates
the lack of factual statements would suggest malfeasance. As such we do not find that
the detective intentionally usurped the magistrate’s inference-drawing authority.
Removing the inferences made in the search warrant, we are left with the factual
statements disclosing three incidents the affiant has labeled as “controlled buys” took
place on or before August 22, 2019. These buys took place either with Madison and or at
Madison’s residence. There are no underlying facts in the record as to activities consisting
of the controlled buy, the dates or time period of the first two controlled buys, and where
or with whom each of these controlled buys took place. As such we find, based on the
totality of the circumstances, that the trial court did not err in finding that the affidavit in
support of the search warrant for Madison’s residence usurped the judge’s inference-
drawing authority.
{¶40} Appellant’s Second Assignment of Error is overruled.
III.
{¶41} In Appellant’s Third Assignment of Error, Appellant argues the trial court
abused its discretion in granting the motion to suppress evidence obtained from
Madison’s residence because the affidavit was insufficient for the reviewing court to
reasonably infer that illegal narcotics and evidence of drug trafficking would be found at
Madison’s residence. We disagree.
{¶42} In the case sub judice, Appellant’s challenge of the trial court’s ruling on
Appellee’s motion to suppress is based on the third method. Accordingly, this Court must
Stark County, Case No. 2020 CA 00075 12
independently determine, without deference to the trial court’s conclusion, whether the
facts meet the appropriate legal standard in this case. More specifically, Appellant is
challenging the trial court’s conclusion that the search warrant issued for Appellee’s
residence was not supported by probable cause.
{¶43} Trial courts and appellate courts “should accord great deference to the
magistrate’s determination of probable cause, and doubtful or marginal cases in this area
should be resolved in favor of upholding the warrant.” State v. George, 45 Ohio St.3d 325,
330, 554 N.E.2d 640 (1989), paragraph two of the syllabus; Illinois v. Gates, 462 U.S.
213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The reviewing court is to ensure
the magistrate had a substantial basis for concluding that probable cause existed. Id.{¶44} “[A]n affidavit for a search warrant must present timely information.” State
v. Jones (1991), 72 Ohio App.3d 522, 526, 595 N.E.2d 485,488. The facts contained in
the affidavit must be so closely related to the time of the issue of the warrant as to justify
the issuing court’s finding of probable cause. Id. In order “to determine if the information
is stale, the issuing court must consider whether there is a nexus between the alleged
crime, the object to be seized, and the place to be searched.” Castagnola at ¶34. Mere
conclusory statements made by the affiant in a search warrant affidavit about the nature
of the contraband are themselves insufficient to justify the issuance of a search warrant.
State v. Hollis, 98 Ohio App.3d 549, 555, 649 N.E.2d 11, 15 (11th Dist. 1994).
{¶45} In State v. Stubbs, 5th Dist. Coshocton No. 2019CA0020, 2020-Ohio-3464,
¶28, the affidavit clearly detailed the activities and circumstances comprising the
controlled buy. “The affidavit stated the informants and their car were searched before
the controlled buy and no contraband was found.” Id. From these facts it can be inferred
Stark County, Case No. 2020 CA 00075 13
the controlled substance did not originate with the defendants. Id. Facts like these
establish a nexus between a defendant’s crimes and the objects to be seized. Id.{¶46} In the case sub judice, Detective Dadisman’s affidavit indicated an active
drug investigation of Madison that a confidential informant has made three controlled buys
of cocaine from Madison and/or Madison’s residence. The most recent taking place on
August 22, 2019. The affidavit mostly contained conclusions and very few factual
statements. The affiant did state that three “controlled buys” took place, the final one
happening on August 22, 2019, four days before the execution of the search warrant. The
affidavit did not provide dates for the first two controlled buys. There is no description of
the activities constituting the controlled buys from which an inference may be drawn to
establish a nexus between a defendant’s crimes and the objects to be seized. Therefore,
applying the principles noted above and granting due deference to the issuing judge’s
determination, we find no error in the trial court’s determination that the affidavit in support
of the search warrant was insufficient for the reviewing court to reasonably infer that illegal
narcotics and evidence of drug trafficking would be found in Madison’s residence.
{¶47} Appellant’s Third Assignment of Error is overruled.
IV.
{¶48} In Appellant’s Fourth Assignment of Error, Appellant argues the trial court
erred in finding that the evidence should be suppressed because there was no reasonable
justification for the traffic stop. We disagree.
{¶49} In the case sub judice, Appellant argues there were two justifications for the
stop of Madison and Appellee. The first was that the stop was permissible incident to the
Stark County, Case No. 2020 CA 00075 14
execution of the search warrant. The second was that reasonable suspicion existed that
Madison and Appellee were engaging in criminal activity.
a. Whether the stop of Madison and Appellee was permissible
incident to the execution of the search warrant
{¶50} Appellant argues the trial court erred in granting Appellee’s motion to
suppress evidence obtained when police initiated a traffic stop detaining Madison and
Appellee.
{¶51} The United State Supreme court held, incident to the execution of a search
warrant on a house, police officers were justified in detaining a person descending the
front steps of the house as they arrived to execute the warrant. Michigan v. Summers,
452 U.S. 692, 693, 705-6, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). However, in Bailey v.
United States, 568 U.S. 186, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013), the United States
Supreme Court held that a warrant to search a house did not justify stopping a car that
left the house shortly before the execution of the warrant. The Supreme Court explained,
“Summers recognized that a rule permitting the detention of occupants on the premises
during the execution of a search warrant, even absent individualized suspicion, was
reasonable and necessary in light of the law enforcement interests in conducting a safe
and efficient search.” Id. This is to ensure that persons at the scene of the search are not
disruptive, dangerous, or destructive during the search. Id. These concerns are not
present when the person detained has already left the property when the search begins.
Id. Therefore, the Supreme Court held, “[t]he categorical authority to detain incident to the
execution of a search warrant must be limited to the immediate vicinity of the premises to
be searched.” Id.Stark County, Case No. 2020 CA 00075 15
{¶52} In Bailey, the police watched the defendant leaving the premises enter a
car, and drive away from the property. Id. After following the car for approximately five
minutes, or about a mile, officers pulled the vehicle over. Id. The Supreme Court
determined Bailey was “detained at a point beyond any reasonable understanding of the
immediate vicinity of the premises in question.” Id.{¶53} In this case, the search warrant itself did not include Madison’s vehicle as
an area to be searched. Upon arrival at the property to be searched, the officers observed
Madison and Appellee enter a vehicle and drive away. The officers followed the vehicle,
initiating a traffic stop at the end of the housing allotment approximately four blocks away.
Officers detained both Madison and Appellee. There is no reason in the record to support
an inference that he would or could interfere with the warranted search. There was no
basis to detain him incident to the execution of the warrant because his circumstances
were not within the limits prescribed by Bailey. Therefore, we agree with the trial court’s
finding that the vehicle was not in the immediate vicinity of the place to be searched and
therefore was not a permissible incident to the execution of the warrant.
b. Whether the stop of Madison and Appellee was justified by
reasonable suspicion that he was committing or about to commit an
offense.
{¶54} “[A]n investigative stop does not violate the Fourth Amendment to the
United States Constitution if the police have reasonable suspicion that ‘the person
stopped is, or is about to be, engaged in criminal activity.’ ” State v. Jordan, 104 Ohio
St.3d 21, 2004-Ohio-6085, ¶35, 817 N.E.2d 864, quoting United States v. Cortez (1981),
449 U.S. 411, 101 S.Ct. 690, 695, 66 L.Ed.2d 621.
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{¶55} Reasonable suspicion entails some minimal level of objective justification,
“that is, something more than an inchoate and unparticularized suspicion or ‘hunch,’ but
less than the level of suspicion required for probable cause.” State v. Jones (1990), 70
Ohio App.3d 554, 556-57, 591 N.E.2d 810, 811 (2nd Dist. 1990), citing Terry v. Ohio, 392
U.S. 1, 27 (1968).
{¶56} An investigatory stop “must be viewed in the light of the totality of the
circumstances” presented to the police officer, “who must react to events as they unfold.”
State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980), paragraph one of the
syllabus; State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991). The officer,
“must be able to point to specific and articulable facts which, taken together with rational
inferences from those facts reasonably warrant that intrusion” Terry, supra at 21, but the
officer need not provide proof beyond a reasonable doubt that the defendant’s conduct
has satisfied the elements of the offense. State v. Willis, 5th Dist. Licking No. 14 CA 103,
2015-Ohio-3739, ¶25.
{¶57} Detective Dadisman testified at the suppression hearing that he made the
call to initiate the traffic stop on Madison and Appellee. He testified that he initiated the
traffic stop because the vehicle was far enough away from the residence as not to alert
anyone in the residence for the safety of the officers. He also testified there was no other
reason for the traffic stop. Specifically, he noted that he did not observe any traffic
violations, nor was there any indication that Appellee or Madison were engaging in drug
activity at the time of the traffic stop.
{¶58} The trial court granted the motion to suppress the evidence obtained from
the traffic stop, finding “the officer admitted that the sole basis of the stop was his belief
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that the vehicle was within the scope of the search warrant.” The trial court also found,
“the vehicle stopped nearly a mile from the residence to be searched was not in the
immediate vicinity of the place to be searched or within the scope of the warrant.”
{¶59} In considering the totality of the circumstances, we cannot say the trial court
erred in finding the traffic stop was not supported by reasonable suspicion of criminal
activity.
{¶60} Upon review, we find the trial court did not err in granting Appellee’s motion
to suppress.
{¶61} Appellant’s Fourth Assignment of Error is overruled.
V.
{¶62} In Appellant’s Fifth Assignment of Error, Appellant argues the trial court
erred by failing to find that the good faith exception to the warrant requirement applied in
this case. We agree.
{¶63} The Fourth Amendment provides that, “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.” However, in George, the Supreme
Court of Ohio recognized that “the Fourth Amendment exclusionary rule should not be
applied so as to bar the use in the prosecution’s case-in-chief of evidence obtained by
officers acting in objectively reasonable reliance on a search warrant issued by a
detached and neutral magistrate but ultimately found to be unsupported by probable
cause.” George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989). In other words, if an affidavit
lacks probable cause, an exception to the exclusionary rule exists where “‘the officer
conducting the search acted in objectively reasonable reliance on a warrant issued by a
Stark County, Case No. 2020 CA 00075 18
detached and neutral magistrate.’” United States v. Watson, 498 F.3d 429, 431 (6th
Cir.2007), quoting, Massachusetts v. Sheppard, 468 U.S. 981, 987-88, (1984). “This is
known as the good-faith exception.” United States v. Rose, 714 F.3d 362, 367 (6th
Cir.2013). See, State v. Dibble, 10th Dist. Franklin No. 13AP-798, 2014-Ohio-5754, ¶15.
{¶64} The good-faith exception to the exclusionary rule is limited in its application.
George, 45 Ohio St.3d at 331; United State v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405,
3421, 82 L.Ed.2d 677 (1984). The Leon court cautioned, “[s]uppression remains an
appropriate remedy” when the court finds that any one of the following four circumstances
exist:
(1)* * * the magistrate or judge * * * 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) “* * * depending on the circumstances of the particular
case, a warrant may be so facially deficient –i.e., in failing to particularize
the place to be searched or the things to be seized-that the executing
officers cannot reasonably presume it to be valid. * * *”
George, 45 Ohio St.3d at 331; Leon, 468 U.S.at 923; Dibble, 2014-
Ohio-5754, ¶16.
{¶65} In State v. Dibble, the Court observed,
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An affidavit lacks the requisite indicia of probable cause if it is a “bare
bones” affidavit. United States v. Laughton, 409 F.3d 744, 748 (6th Cir.
2005), citing Leon at 914-923. The inquiry into whether an affidavit is so
bare bones as to preclude application of the good-faith exception is a less
demanding inquiry than that involved in determining whether an affidavit
provides a substantial basis for the magistrate’s conclusion of probable
cause. Laughton at 748, citing Leon at 914-23. The Sixth Circuit has defined
“bare bones” affidavit as one that states “suspicions, beliefs, or conclusions,
without providing some underlying factual circumstances regarding
veracity, reliability, and basis of knowledge.” Laughton at 748-49, citing
United States v. Weaver, 99 F.3d 1372, 1378(6th Cir.1996).
10th
{¶66} In the case sub judice, the affidavit in support of the search warrant contains
an address and detailed description of the residence to be searched. Further, the affidavit
of Detective Dadisman states the date of the third controlled buy, and that all three
controlled buys either took place at the residence and/or with Madison. As such, the
affidavit was more than just “bare bones.” The affidavit did not merely contain suspicions,
beliefs, or conclusions, without providing some underlying factual circumstances
regarding veracity, reliability, and basis of knowledge.
{¶67} We find the execution of the warrant and resulting seizure of contraband
were within the standards of the “good-faith exception” to the exclusionary rule.
{¶68} The Appellant’s Fifth Assignment of Error is granted.
Stark County, Case No. 2020 CA 00075 20
VI.
{¶69} In Appellant’s Sixth Assignment of Error, the State argues the legality of the
traffic stop was irrelevant since Appellee voluntarily handed the drugs over to the officers
during the traffic stop making the drugs otherwise admissible evidence. We disagree.
{¶70} Searches and seizures conducted without a warrant, without probable
cause, and not incident to lawful arrest, violate the Fourth Amendment to the United
States Constitution, and all fruits thereof are subject to suppression. Mapp v. Ohio (1961),
367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Wong Sun v. United States (1963), 371
U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. “The exclusionary rule has traditionally barred
from trial physical, tangible materials obtained either during or as a direct result of an
unlawful invasion.” Wong Sun at 485.
{¶71} It is well established a defendant waives his or her Fourth Amendment
protection by consenting to a warrantless search. State v. Barnes, 25 Ohio St.3d 203,
208, 495 N.E.2d 922 (1986), citing Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256,
90 L.Ed. 1453 (1946), Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.
854 (1973). “The standard of proof to show a waiver of Fourth Amendment rights is less
strict than that required to demonstrate a waiver of Fifth or Sixth Amendment rights. It
need not be shown that there has been a knowing and intelligent waiver. Rather, the court
must examine the totality of the circumstances to determine the voluntariness of consent.”
Barnes, supra at 208-209, citing Schneckloth, supra and United States v. Mendenhal,
446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).
{¶72} “Voluntary consent, determined under the totality of the circumstances, may
validate an otherwise illegal detention and search.” State v. Robinette, 80 Ohio St.3d 234,
Stark County, Case No. 2020 CA 00075 21
241, 1997-Ohio-343, 685 N.E.2d 762, citing Davis v. United States, supra at 593-594.
Important factors to consider when determining the voluntariness of consent are: (1)
voluntariness of the defendant’s custodial status; (2) presence of coercive police
procedures; (3) extent and level of defendant’s cooperation with police; (4) defendant’s
awareness of her right to refuse to consent; (5) defendant’s education and intelligence;
and (6) defendant’s belief that no incriminating evidence will be found. State v. Moscoso,
5th Dist. Muskingum No. CT2018-0012, 2018-Ohio-2877, ¶25, citing State v. Webb, 2nd
Dist. No. 17676, 2000 WL 84658 unreported (Jan. 28, 2000).
{¶73} “Whether a consent to search was voluntary or was the product of duress
or coercion, either express or implied is a question of fact to be determined from the
totality of the circumstances.” State v. Carothers, 5th Dist. Tuscarawas No. 2015 AP 04
0017, 2015-Ohio-4569, 47 N.E.3d 483, ¶30, citing State v. Lett, 11th Dist. No. 2008-T-
0116, 2009-Ohio-2796, ¶32, citing Schneckloth at 248-249. Thus this determination is
best left to the trier of fact, and will only be reversed upon a showing that it is not supported
by competent, credible evidence. Carothers at ¶30.
{¶74} In State v. Clark, 5th Dist. Ashland No. 15-COA-040, 2016-Ohio-4614, the
defendant was pulled over. After an initial search of the vehicle, officers determined the
glove box was locked. The officer then approached the defendant and asked for the key
to the glove box. Id. The defendant provided the officer the key. Id. The officer found a
firearm in the glove box. Id. This Court stated that the officer approaching the defendant
“with an outstretched hand and asking for the keys” was done so “under the color and
authority of his badge and uniform.” Id. This Court further held the “mere relinquishment
of the keys by appellant” is not sufficient to establish voluntary consent. Id.Stark County, Case No. 2020 CA 00075 22
{¶75} In the case sub judice, Appellant has conceded Appellee was in custody
and advised of her Miranda rights. Detective Dadisman asked Appellee if she was in
possession of any drugs or weapons; Appellee did not reply. Detective Dadisman took
custody of Appellee, conducted a pat down for officer safety, and did not discover
anything. The detective then took Appellee to the police cruiser, where Appellee was
advised a female officer would be doing a more thorough pat down of her. At this point
Appellee said she would cooperate and presented the officers with the drugs she was
hiding.
{¶76} Only after an illegal traffic stop, detention, being subject to one pat down,
an arrest, and the threat of a more invasive search did Appellee turn over the drugs which
were concealed on her person. Given these facts, the trial court’s determination that the
consent was not voluntary is supported by competent, credible evidence.
{¶77} We find the trial court did not abuse its discretion in excluding the evidence
found on Appellee as “fruits of the poisonous tree” of the unlawful traffic stop as the finding
was supported by competent, clear evidence.
{¶78} Appellant’s Sixth Assignment of Error is overruled.
Stark County, Case No. 2020 CA 00075 23
{¶79} For the foregoing reasons, the judgment of the Court of Common Pleas of
Stark County, Ohio, is affirmed in part and reversed in part. This matter is remanded for
further proceedings consistent with this opinion .
By: Wise, J.
Gwin, P. J., concurs.
Hoffman, J., concurs separately.
JWW/br 0105
Stark County, Case No. 2020 CA 00075 24
Hoffman, P.J., concurring
{¶80} I concur in the majority’s analysis and disposition of Appellant’s first, fourth,
fifth, and sixth assignments of error.
{¶81} I disagree with the majority’s analysis and disposition of Appellant’s
second and third assignments of error. However, such disagreement does not affect my
agreement with the majority’s ultimate disposition of the appeal based on the application
of the “good faith” exception.