State v. Navarro , 2016 Ohio 749 ( 2016 )

[Cite as State v. Navarro, 2016-Ohio-749.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-15-28
v.
BRANDON L. NAVARRO, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 14-CR-0049
Judgment Affirmed
Date of Decision: February 29, 2016
APPEARANCES:
John M. Kahler, II for Appellant
Brian O. Boos for Appellee
Case No. 13-15-28
ROGERS, J.
{¶1} Defendant-Appellant, Brandon Navarro, appeals the judgment of the
Court of Common Pleas of Seneca County denying his motion to suppress
evidence seized during the execution of three search warrants. On appeal, Navarro
argues that his Fourth Amendment rights were violated insofar as the first and
second search warrants (1) were not supported by probable cause and (2) failed to
state with particularity the items to be seized. For the reasons that follow, we
affirm the judgment of the trial court.
{¶2} On February 20, 2014, a Seneca County Grand Jury indicted Navarro
on one count of illegal cultivation of marihuana, with an attendant forfeiture
specification, in violation of R.C. 2925.04(A), a felony of the third degree; one
count of trafficking in marihuana, with an attendant forfeiture specification, in
violation of R.C. 2925.03(A)(2), a felony of the fourth degree; and one count of
possessing criminal tools in violation of R.C. 2923.24(A), a felony of the fifth
degree. The indictment arose after authorities uncovered a marihuana grow
operation inside Navarro’s home in the summer of 20131
{¶3} On April 20, 2015, Navarro filed a motion to suppress the evidence
underlying the indictment on the grounds that the affidavits in support of the
search warrants did not establish probable cause to believe that marihuana-related
1
The record is unclear as to Navarro’s whereabouts between the summer of 2013 and February 2014.
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activity was occurring in the residence located at 129 Hale Drive (“the
Residence”).2
{¶4} On May 11, 2015, the State filed its response arguing that the search
warrants’ affidavits established probable cause. The State added that it did not
intend to introduce evidence obtained in connection with the third search warrant
against Navarro because the item searched, a cell phone, belonged to a co-
defendant, Ryan Steward, and was only indicative of Steward’s drug-related
activity. To that end, the State argued that Navarro lacked standing to challenge
the third search warrant.
{¶5} On June 16, 2015, Navarro filed a supplement to his motion to
suppress, and that same day, a hearing was held. No testimony was presented, but
the parties offered a copy of the three search warrants into evidence. The search
warrants contained the following information:
{¶6} On July 9, 2013, Detective Gabriel Wedge of the Seneca County Drug
Task Force appeared before a Tiffin-Fostoria Municipal Court judge and obtained
a warrant for the use of a thermal imaging scanner at the Residence.
{¶7} In support of the warrant application, Detective Wedge provided a
sworn affidavit containing the following information, in relevant part:
2
The record is unclear as to Navarro’s whereabouts between February 2014 and January 2015. However,
in January 2015, the record indicates that the trial court received notification that Navarro had been recently
incarcerated at the Noble Correctional Institution on unrelated charges. Upon Navarro’s incarceration,
proceedings in the instant case resumed.
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1. During my employment with the Fostoria Police Department,
and as an agent with the Seneca County Drug Task Force –
METRICH Enforcement Unit, I, along with other agents of the
Seneca County Drug Task Force have received multiple complaints
from citizen’s[sic] reporting suspected drug related activity going on
in specific areas and/or streets throughout the City of Fostoria,
Seneca County, Ohio specifically [the Residence] and involving a
subject named [Navarro]. These complaints continue and are
ongoing at the present time.
2. On June 27, 2013, I received information from an anonymous
person stating that [the Residence] was being used by [Navarro] to
grow marijuana/cannabis. The anonymous person stated that the
basement was full of marijuana/cannabis plants. The anonymous
called[sic] stated the residence has a white truck and a black car in
the driveway.
***
5. In conducting surveillance at [the Residence], I have found that
[the Residence] a brick two story, single unit dwelling, tan in color,
with a covered porch on the north side of the residence bearing the
black numerals “129” on the white porch over hang, with a detached,
green in color garage. The residence is across from rail road tracks
near the Rail Bar. I also observed in front of the residence a black
Pontiac 4 door with Ohio registration DSX 1640 and a white truck in
the driveway; however, the registration was not visible. All of my
observations are consistent with the information received through
the anonymous complaint in relation to [Navarro] and the residence.
***
8. On June 27, 2013, by way of the rail road tracks, I attempted to
get close to [the Residence] to attempt to see the license plate of the
white truck; however due to darkness and lack of lighting in the area
of the residence, I was unable to do so.
9. While attempting to obtain the white truck’s registration, as
said above, the wind was blowing from the south/south west, from
the direction of the house into my face. I was then able to, based on
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my training and experience as a police officer with the Fostoria
Police Department and as a detective with the Seneca County Drug
Task Force, METRICH Enforcement Unit, smell the distinct odor of
fresh (unburnt) marijuana/cannabis.
10. I also noted while doing surveillance of the residence, all the
windows were covered or had the blinds pulled shut. Due to the
location of the residence and the way the street is setup, it is very
hard to make visual observation of the property for any further
evidence without getting on the subject’s property.
June 16, 2015 Hrg., Court’s Ex. 1, p. 3-5.
{¶8} The search warrant was executed later that day, and the results
revealed abnormal heat and surface temperatures emanating from the Residence.
{¶9} Based on this information, on July 11, 2013, Detective Wedge
appeared before a Tiffin-Fostoria Municipal Court judge and obtained a warrant to
search the Residence for evidence relating to the cultivation and possession of
marihuana. The search warrant identified the following items to be seized:
Any illegally possessed drugs or controlled substances, firearms,
weapons, drug paraphernalia, photos depicting drug use or
trafficking, money, money obtained by drug sales, records of drug
sales, items used to prepare drugs for sale or shipment, containers,
sales, lock boxes used to store drugs, documents to indicate
possession or control of premises. Any computers, computer discs,
televisions, DVD’s, DVD players, digital cameras, cell phones and
any other electronic equipment with purpose to store data. Any
other items or instrumentalities used to facilitate the cultivation of
mari[h]uana, drug use, drug trafficking, or the crime under
investigation.
June 16, 2015 Hrg., Court’s Ex. 2, p. 1.
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{¶10} In support of the warrant application, Detective Wedge provided a
sworn affidavit containing the same information as the first warrant, with the
following additions, in relevant part:
13. [On July 9, 2013], the Seneca County Drug Force–METRICH
Enforcement Unit, along with the assistance from Officer Brandon
Bell (a Certified Thermographer) of the Fostoria Police Department,
utilized a Thermal Imaging Device on [the Residence]. Upon doing
so, according to the Certified Thermographer, Officer Brandon Bell,
[the Residence] was emitting from within the premises certain
dissipating heat, surface temperature variable and thermal image
information. The certain dissipating heat and surface temperature
variables observed coming from the said residence is consistent with
heat signatures involved in “indoor” marihuana[sic] growing
operations and is coming from the basement area of the residence
which is consistent with the anonymous complaint received.
14. While viewing the said abnormalities in the dissipating heat
and surface temperature of the said residence, I noted that where
these abnormalities were appearing through the thermal imager,
there was an air conditioner (on and running) in a window along the
same wall. Any reasonable person would believe and understand
that in an area of a residence where an air conditioner is on and
running, emitting cold air, there should be no abnormal heat
signature, or at the very least should show less heat than areas of the
home where there is no air conditioners present.
15. In accordance with the above said thermal imaging search
warrant, certified thermographer, Officer Brandon Bell, viewed
other residences to conduct thermal imaging scans of comparative
structures for comparison purposes only. While doing the
comparison scans, Officer Bell noted there to be a noticeable
difference in surface temperature while comparing [the Residence]
to the other residences used for comparison purposes. Being that
[the Residence] was showing a greater amount of dissipating heat,
surface temperature (brighter illumination) than the other residences
which were consistently showing very little or none (no
illumination).
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***
17. On July 11, 2013 at approximately [8:55 am], I spoke with the
landowner of [the Residence], Michael Hammer. Mr. Hammer
advised the tenant at [the Residence] is [Navarro]. Mr. Hammer
advised [Navarro] is the only subject on the lease agreement.
June 16, 2015 Hrg., Court’s Ex. 2, p. 7-8.
{¶11} The warrant was executed later that day, and a marihuana grow
operation was uncovered.
{¶12} On July 17, 2013, Detective Wedge applied for a third warrant to
search a cell phone seized during the search of the Residence. The warrant was
issued and executed later that day, and the search revealed communications
indicative of Steward’s marihuana-related activity.
{¶13} By entry dated June 22, 2015, the trial court denied Navarro’s motion
to suppress finding that probable cause existed to support the first search warrant,
and therefore, the subsequent warrants were supported by probable cause. In
doing so, the trial court noted that
[a]lthough the Ohio Supreme Court has ruled that the odor of
contraband if it is able to be identified by a qualified individual, is
enough by itself to establish probable cause, this [c]ourt does not
need to rely simply upon the identification by Detective Wedge, who
is qualified to detect such an odor, the affidavit also includes
numerous general complaints about drug activity at the residence, as
well as a specific anonymous tip about marijuana being grown at the
residence. That tip was further corroborated by Detective Wedge
when he noted that the windows of the residence were covered or
otherwise barred, and by the odor of marijuana he detected.
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(Docket No. 25, p. 4.)
{¶14} On July 14, 2015, Navarro entered a plea of no contest to the
indictment, and the trial court entered a finding of guilt. Navarro was sentenced to
two years in prison, consecutive to Navarro’s earlier, unrelated sentence out of
Wood County.
{¶15} It is from this judgment that Navarro appeals, presenting the
following assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED WHEN IT OVERRULED THE
MOTION TO SUPPRESS EVIDENCE FOUND IN THE
SEARCHES OF THE RESIDENCE BECAUSE THE
AFFIDAVITS DID NOT CONTAIN INFORMATION
SUFFICIENT TO ESTABLISH PROBABLE CAUSE FOR
ISSUANCE OF THE SEARCH WARRANT.
Assignment of Error No. II
THE TRIAL COURT ERRED WHEN IT OVERRULED THE
MOTION TO SUPPRESS EVIDENCE FOUND IN THE
SEARCHES OF THE RESIDENCE BECAUSE THE
SEARCH WARRANTS’ DESCRIPTION OF ITEMS TO BE
SEIZED WAS INSUFFICIENT.
Assignment of Error No. I
{¶16} In his first assignment of error, Navarro argues that the trial court
erred in denying his motion to suppress evidence seized in connection with the
execution of the first two search warrants. Specifically, Navarro claims that the
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affidavit in support of the first search warrant did not establish probable cause to
believe that marihuana-related activity was occurring in the Residence, and
therefore, both the first and second search warrants are invalid. We disagree.
{¶17} “Appellate review of a decision on a motion to suppress presents a
mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-
Ohio-5372, ¶ 8. The trial court serves as the trier of fact and is the primary judge
of the credibility of the witnesses and the weight to be given to the evidence
presented. State v. Johnson, 137 Ohio App.3d 847, 850 (12th Dist. 2000).
Therefore, when an appellate court reviews a trial court’s ruling on a motion to
suppress, it must accept the trial court’s findings of facts so long as they are
supported by competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71,
2006-Ohio-3665, ¶ 100. The appellate court must then review the application of
the law to the facts de novo. Burnside at ¶ 8.
{¶18} The Fourth Amendment to the United States Constitution, as applied
to the states through the Fourteenth Amendment, provides that “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and 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.”
Article I, Section 14 of the Ohio Constitution contains a similar provision.
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{¶19} Probable cause is a lesser standard of proof than that required for a
conviction, such as proof beyond a reasonable doubt or by a preponderance of the
evidence. State v. Young, 146 Ohio App.3d 245, 254 (11th Dist.2001), citing State
v. George, 45 Ohio St.3d 325, 329 (1989). Probable cause only requires the
existence of circumstances that warrant suspicion; thus, “the standard
for probable cause requires only a showing that a probability of criminal activity
exists, not a prima facie showing of criminal activity.” (Emphasis sic.) Young at
254, citing George at 329.
{¶20} When evaluating an affidavit for the sufficiency of probable cause,
the issuing magistrate must apply a totality-of-the-circumstances test. George at
paragraph one of the syllabus, citing Illinois v. Gates, 462 U.S. 213, 238-239, 103
S.Ct. 2317, 76 L.Ed.2d 527 (1983). On review, neither the trial court nor an
appellate court should substitute its judgment for that of the magistrate. George at
paragraph two of the syllabus, citing Gates. Rather, a reviewing court should
“accord great deference to the magistrate's determination of probable cause” and
focus its inquiry on whether the magistrate had “a substantial basis for concluding
that probable cause existed.” Id. “[D]oubtful or marginal cases in this area should
be resolved in favor of upholding the warrant.” Id.{¶21} An anonymous tip can establish probable cause, depending on the
totality of the circumstances. Gates at 241–44. Under the totality of the
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circumstances analysis, the degree to which the anonymous tip was corroborated
or supplemented by independent police investigation is of “significant value.” Id.at paragraph four of the syllabus.
{¶22} Here, the relevant inquiry is whether Detective Wedge’s affidavit in
support of the first search warrant application established a substantial basis to
conclude that there was probable cause to believe that marihuana-related activity
was occurring in the Residence. See State v. Leibold, 2d Dist. Montgomery No.
25124, 2013-Ohio-1371, ¶ 31 (A probable cause inquiry is generally confined to
the four corners of the affidavit.). Given the nexus between the first and second
search warrant, if the first search warrant was supported by probable cause, it
logically follows that the second search warrant was supported by probable cause.
{¶23} In the first affidavit, Detective Wedge stated that he received an
anonymous tip that the Residence was being used by Navarro to grow marihuana
and that the Residence had a white truck and black car in the driveway. This was
not the first time Detective Wedge had received reports of illegal activity at the
Residence.
{¶24} Standing alone, the anonymous tip did not provide an adequate basis
for a probable cause determination. The anonymous tip provided virtually nothing
from which one might conclude that the anonymous informant was “either honest
or his information reliable”; likewise, the anonymous tip gave no indication of the
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basis for the anonymous informant’s claim regarding Navarro’s marihuana grow
operation. Gates, 462 U.S. at 227.
{¶25} After receiving the anonymous tip, Detective Wedge visited the
Residence where he observed two vehicles in the driveway: a white truck and a
black sedan. He further noted that all the windows were covered or had the blinds
pulled shut. At that point, something more was still required to establish probable
cause to believe that marihuana-related activity was occurring in the Residence;
the fact that the anonymous informant described the vehicles in the driveway gave
no indication of the basis for the anonymous informant’s claim regarding
Navarro’s marihuana grow operation.
{¶26} However, Detective Wedge stated that while attempting to obtain the
white truck’s registration “by way of the rail road [sic] tracks,” the wind blew
from the direction of the Residence, and as a result, he smelled the distinct odor of
fresh, unburnt marihuana. June 16, 2015 Hrg., Court’s Ex. 1, p. 4. He added that
he was familiar with the smell of fresh, unburnt marihuana based on his education
and experience. The Ohio Supreme Court has found that “[t]he smell of
marijuana, alone, by a person qualified to recognize the odor, is sufficient to
establish probable cause to conduct a search.” State v. Moore, 90 Ohio St.3d 47(2000), paragraph one of the syllabus. Moore makes no clear distinction between
the smell of burnt marihuana and the smell of fresh marihuana.
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{¶27} At the suppression hearing, Navarro offered nothing to rebut
Detective Wedge’s claim that he was able to smell the distinct odor of fresh,
unburnt marihuana in the air. For example, Navarro did not question Detective
Wedge about his experience in detecting the odor of fresh, unburnt marihuana;
Navarro did not question Detective Wedge on the distance between Detective
Wedge and the Residence at the time he claimed to smell the odor of fresh,
unburnt marihuana; and Navarro did not question Detective Wedge on other
possible sources of the odor of fresh, unburnt marihuana.
{¶28} Therefore, pursuant to Moore, we find that Detective Wedge’s
affidavit established a substantial basis for concluding that probable cause existed
to believe that marihuana-related activity was occurring in the Residence. In
addition, the trial court noted the windows were covered or had the blinds pulled
shut consistent with the officer’s experience in other cases of marijuana
cultivation.
{¶29} Accordingly, we overrule Navarro’s first assignment of error.
Assignment of Error No. II
{¶30} In his second assignment of error, Navarro argues that the second
search warrant did not describe with particularity the items to be seized.
Specifically, Navarro claims that the second search warrant was overly broad
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insofar as it provided for the seizure of items related to all drug-related activity, as
opposed to the seizure of items related to the cultivation and sale of marihuana.
{¶31} Crim.R. 47 provides, in relevant part:
An application to the court for an order shall be by motion. A
motion, other than one made during trial or hearing, shall be in
writing unless the court permits it to be made orally. It shall state
with particularity the grounds upon which it is made and shall set
forth the relief or order sought. It shall be supported by a
memorandum containing citations of authority, and may also be
supported by an affidavit.
(Emphasis added.).
{¶32} “[Crim.R. 47], * * * 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.” City of Xenia v. Wallace, 37 Ohio St.3d 216, 219 (1988).
“The prosecutor must know the grounds of the challenge in order to prepare his
case, and the court must know the grounds of the challenge in order to rule on
evidentiary issues at the hearing and properly dispose of the merits.” Id. at
218. “Failure on the part of the defendant to adequately raise the basis of his
challenge constitutes waiver of that issue on appeal.” Id; see also State v.
Wangler, 3d Dist. Allen No. 1-11-18, 2012-Ohio-4878, ¶ 25.
{¶33} In reviewing the record, it is clear that the issue of particularity was
never raised before the trial court. Navarro’s motion to suppress and his
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supplemental memorandum focused primarily on the issue of the “plain smell
doctrine” and whether it applied to the odor of fresh, unburnt marihuana.
Likewise, Navarro never mentioned the warrants’ lack of particularity at the
suppression hearing. Thus, Navarro’s argument is waived on appeal.
{¶34} Accordingly, we overrule Navarro’s second assignment of error.
{¶35} Having found no error prejudicial to Navarro, in the particulars
assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and WILLAMOWSKI, J., concur.
/jlr
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