State v. Gales , 143 Ohio App. 3d 55 ( 2001 )

^* Reporter's Note: A discretionary appeal to the Supreme Court of Ohio was not allowed in (2001), 92 Ohio St.3d 1445, 751 N.E.2d 483. [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

JOURNAL ENTRY AND OPINION Defendant-appellant Maurice Gales appeals from his conviction and sentence entered after the trial court accepted his plea of no contest on three charges: possession of heroin in an amount greater than 10 grams but less than 50 grams, a felony of the second degree under R.C. 2925.11; having a weapon under a disability, a felony of the fifth degree under R.C. 2923.13; and possession of criminal tools, a felony of the fifth degree under R.C. 2923.24. Gales argues that the court erred when it quashed various defense subpoenas, denied his motion to suppress evidence, and refused to order the state to divulge the identity of the confidential informant who allegedly provided the factual basis for the search warrant. Because probable cause did not exist to issue the search warrant, and the good faith exception to the Fourth Amendment exclusionary rule in the execution of the warrant does not apply to the facts of this case, we sustain Gales' second assignment of error challenging the denial of his motion to suppress the evidence, vacate the judgment of conviction, and remand for further proceedings.

The disposition of this appeal centers upon the July 30, 1998 affidavit supporting the search warrant of Gales' address, 15801 Invermere, Cleveland, Ohio, which was based upon a confidential reliable informant's (CRI) two controlled buys of heroin, a Schedule I drug. The first controlled buy allegedly occurred several months before the date of the affidavit at East 147th and Harvard Avenue:

Several months ago, CRI informed Affiant that he had a conversation with a suspect, who was Maurice Gales and that Gales stated to the CRI that he had some heroin. Gales is described as a black male, in his twenties, 5'10" in height, weighing 200 pounds. CRI contacted Affiant and stated that he would contact Gales. CRI and Affiant met at a predetermined location at East 147th and Harvard Avenue. CRI contacted Gales via cellular telephone and was told by Gales that he had some heroin at the above described residence and he would drive over to the CRI's location with some heroin.

* * *

Surveillance was set up at the above described premises and Gales exited the above described premises and drove off in a Pontiac Bonneville, maroon in color. Gales appeared a short time later at the CRI's location. CRI was met by the suspect and the CRI entered the suspect's vehicle. A brief conversation ensued and an exchange of purported heroin for a sum of money occurred. Affiant states that the CRI returned to the undercover vehicle. CRI handed the Affiant packets of purported heroin. CRI was again searched and found to be free of any other drugs for money. Affiant observed Gales return back to the above described premises.

The second controlled buy allegedly occurred within three days of the date of the affidavit. Gales allegedly initiated the transaction with a call to the CRI. The CRI completed the transaction at, again, a location other than 15801 Invermere with an unidentified black male whose car was later found at Gales' address:

Within the past seventy-two (72) hours, [A]ffiant has conducted surveillance of the above described premises at which time he has observed Gales going in and out of the above described premises.

Affiant states that within the past seventy-two (72) hours he met with the CRI. CRI informed Affiant that Gales contacted him and stated that the CRI should go to an area near Superior and Euclid Avenue to make a drug transaction. * * * Affiant states that the CRI has provided information leading to narcotic related arrests, confiscation of drugs, money and other contraband and other information involving premises used to sell narcotics.

CRI was issued an amount of United States currency, the serial numbers of which were recorded. CRI was driven to the vicinity of Superior and Euclid Avenue and was observed by [A]ffiant to approach and enter a vehicle described as a black, four[-]door Chevy Celebrity, with a temporary tag.

CRI was met at the vehicle by a black male. CRI informed [A]ffiant that CRI and the black male engaged in an exchange in the vehicle where CRI handed the black male a sum of buy money and was given packets of purported heroin. Shortly thereafter, [A]ffiant observed this vehicle in the driveway of the above described premises.

A Cuyahoga County Common Pleas Court judge authorized the requested search warrant and, around 8:00 a.m. on July 31, 1998, Cleveland police officers, in conjunction with members of the Drug Enforcement Administration, executed the warrant, confiscating U.S. currency, a pager, various guns, heroin, and other miscellaneous items. Gales was later charged with possession of heroin in an amount greater than 10 grams but less than 50 grams, having a weapon under a disability, and possession of criminal tools.

Gales' attorney eventually filed separately a motion for the production of the alleged informant, challenging the existence and credibility of the alleged CRI, and a motion to suppress, requesting both the suppression of the items seized in the alleged unlawful search and the return of these same items. After a Franks hearing,¹ the court denied Gales' motion to reveal the identity of the informant, concluding that Gales had failed to show that the identity of the informant was necessary to his defense since the informant was neither a participant in the crime nor a witness to an element of the crime. At the hearing on the motion to suppress evidence, the state asked the court to deny discovery of the documents requested in various subpoenas issued to three Cleveland police officers associated with the search. Gales' attorney had requested various documents and records, including, for example, those setting forth the procedure used in conducting forcible entries of private homes, the number of homes entered forcibly in the previous 18 months, contacts with the CRI, and dates of surveillance of the transactions at issue. After hearing, the judge denied the motion to suppress evidence and granted the state's request to quash the subpoenas.

On October 8, 1999, Gales withdrew his plea of not guilty and entered his plea of no contest. The court accepted the plea and found him guilty as charged in the indictment. In an order journalized November 3, 1999, the court imposed a prison term of two years on the possession offense and six months on the weapons and criminal tools offenses. From this order, Gales filed a timely appeal.

Gales presents three assignments of error for our review:

I. THE COURT ERRED WHEN ON THE STATE'S MOTION IT IN EFFECT QUASHED VARIOUS DEFENSE SUBPOENAS AND WHEN THE COURT FAILED TO ENFORCE THE SUBPOENAS WHEN SPECIFICALLY REQUESTED TO DO SO.

II. THE COURT ERRED WHEN IT DENIED THE APPELLANT'S MOTION TO SUPPRESS.

III. THE COURT ERRED WHEN, FOR REASONS THAT CANNOT BE DEFINED, HE [sic] REFUSED TO REQUIRE THE STATE TO DIVULGE THE IDENTITY OF THE ALLEGED INFORMANT WHO WAS SAID TO HAVE BEEN THE PURCHASER (AND THUS A PARTICIPANT) IN THE ALLEGED DRUG SALES CENTRALIZED IN THE CASE AGAINST THE APPELLANT.

His second assignment of error is dispositive of this appeal.

Gales argues that the affidavit lacked sufficient factual support to issue the warrant to search the premises. When determining the sufficiency of probable cause in an affidavit submitted in support of a search warrant, ``[t]he 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, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.' State v. George (1989), 45 Ohio St.3d 325;544 N.E.2d 640, paragraph one of the syllabus, following Illinois v. Gates (1983), 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527. When either a trial or appellate court reviews the sufficiency of probable cause in an affidavit submitted in support of a search warrant issued by a magistrate, [it] * * * should [not] substitute its judgment for that of the magistrate by conducting a de novo determination as to whether the affidavit contains sufficient probable cause upon which that court would issue the search warrant. George, supra at paragraph two of the syllabus. Instead, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed[,] and it 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. Id.

In addition, an affidavit for a search warrant must contain timely information. State v. Jones (1991), 72 Ohio App.3d 422, 526,595 N.E.2d 485. ``[P]roof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time. Whether the proof meets this test must be determined by the circumstances of each case.' Id., quoting Sgro v. United States (1932),287 U.S. 206, 210, 53 S.Ct. 138, 140, 77 L.Ed.3d 260, 263.

Because probable cause to search ``is concerned with facts relating to a presently existing condition,' * * * there arises the ``unique problem of whether the probable cause which once existed has grown stale. ' United States v. Spikes (C.A.6, 1998), 158 F.3d 913, 923. * * * The key issue is whether the alleged facts justify the conclusion that the subject contraband is probably on the person or premises to be searched. [State v. Jones (1991), 72 Ohio App.3d 522, 526, 595 N.E.2d 485.] Variables to consider include how perishable the item to be seized is and whether the information in the affidavit relates to a single isolated incident or a protracted ongoing criminal activity. State v. Floyd (Mar. 29, 1996), 1996 Ohio App. LEXIS 1152, Darke App. No. 1389, unreported. [State v. Barnes (Mar. 16, 2000), Franklin App. No. 99AP-572, unreported.]

As noted above, the asserted probable cause forming the basis of the search warrant were two controlled buys that did not occur at the 15801 Invermere Avenue address. With regard to the first off-site controlled buy, Gales' single, alleged admission to the CRI that he had some heroin at that address, and the police surveillance of that address, were the only means of linking the possible presence of heroin to that address. Given the perishable nature of the contraband at issue, there is no reason to believe that one might find heroin at the address three months after this alleged admission and single, isolated surveillance. See State v. Lahmers (Feb. 14, 1995), Tuscarawas App. Nos. 94AP080055, 94AP080056, unreported. Thus, standing alone, probable cause had grown stale.

With regard to the second off-site controlled buy, the affidavit supports the conclusion that Gales assumed the role of disclosing the location where the CRI could purchase heroin. The affidavit cannot be reasonably read to show that the unidentified black male involved in the transaction transported the heroin at issue to the CRI from 15801 Invermere because nothing in the affidavit ties the black Chevy Celebrity to the address at a closely related time before the sale. Moreover, while the affiant avers that he observed Gales going in and coming out of 15801 Invermere within a 72-hour period, nothing connects this with ongoing criminal activity. Thus, according great deference to the judge authorizing the search warrant, the incidents described in the affidavit do not provide a substantial basis to conclude that probable cause existed to issue the warrant.

We are mindful of the rule that [t]he 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, supra at paragraph three of the syllabus, following United States v. Leon (1984), 468 U.S. 897, 105 S.Ct. 3405, 82 L.Ed.2d 677. The reviewing court must confine its good-faith inquiry to the four corners of the affidavit, and the court presumes the officer who claims good-faith reliance has a certain minimum level of knowledge of what the law requires. State v. Klosterman (1996), 114 Ohio App.3d 327, 333,683 N.E.2d 100. The test for the good faith exception is ``whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization.' State v. Jones (1991), 72 Ohio App.3d 522, 528, 595 N.E.2d 485, 489, quoting Leon, 468 U.S. at 922-923, 104 S.Ct. at 3420, 82 L.Ed.2d at 698, fn. 23.

The good faith exception to the exclusionary rule does not apply here. Nothing found within the four corners of the affidavit, closely related to the time of the issuance of the warrant, showed a fair probability that heroin would be found at 15801 Invermere. Thus, it rendered official belief in the existence of probable cause entirely unreasonable. George,45 Ohio St.3d at 331, referring to Leon, supra at 923. Gales' second assignment of error is sustained.

Although it is not essential to our resolution of this appeal, even if we assume that the affidavit, as written, supports a finding of probable cause, the trial court should have allowed the discovery of the CRI's identity as Gales argues in his third assignment of error.

The state must reveal the identity of an informant to an accused when the testimony of the informant is vital to establish an element of the crime or would be helpful or beneficial to the accused in preparing or making a defense to criminal charges. State v. Williams (1983),4 Ohio St.3d 74, 446 N.E.2d 779, syllabus; accord, e.g., State v. Richard (Sept. 7, 2000), Cuyahoga App. No. 76797, unreported. The disclosure of a CRI's identity requires a balancing of competing interests (i.e., the accused's right to confront his or her accusers and the state's right to preserve an informant's anonymity), but the balance tilts in favor of disclosure when the CRI's degree of participation is such that the CRI is essentially a state's witness. Richard, supra; see State v. Feltner (1993), 87 Ohio App.3d 279, 282, 622 N.E.2d 15.

As the affidavit shows, the CRI is the only witness to the first controlled buy which is alleged to have involved both Gales and heroin removed from his residence; the affiant does not aver that he or another police officer witnessed the sale. See State v. Phillips (1971),27 Ohio St.2d 294, 300-301, 272 N.E.2d 347; cf. State v. White (Jan. 4, 1996), Cuyahoga App. No. 68424, unreported (police verified CRI's information). In addition, the CRI was the only person privy to the alleged call from Gales setting up the specifics of the second controlled buy. The affiant only witnessed and identified a black male driving a vehicle unlike the one alleged to have been driven by Gales in the first controlled buy. The affiant did not link the second vehicle to Gales, except to the extent that it showed up at 15801 Invermere shortly after the second transaction.

As the United States Supreme Court stated in Roviaro v. United States (1957), 353 U.S. 53, 64-65, in which it held that the lower courts had erred in refusing to order the government to disclose the identity of a confidential informant material to the defendant's case:

This is a case where the Government's informer was the sole participant, other than the accused, in the transaction charged. The informer was the only witness in a position to amplify or contradict the testimony of government witnesses. * * * We conclude that, under these circumstances, the trial court committed prejudicial error in permitting the Government to withhold the identity of its undercover employee in the face of repeated demands by the accused for his disclosure.

Similarly, we would conclude in this case that the court abused its discretion in refusing to order the state to disclose the CRI's identity for the reasons that the CRI would be both helpful and beneficial to Gales in preparing or making his defense to the charges against him. See Feltner, 87 Ohio App.3d at 282.

In light of the foregoing conclusion, Gales' first and third assignments of error are rendered moot. App.R. 12 (A)(1)(c). Therefore, the judgment of conviction and sentence is vacated, and this matter is remanded for further proceedings.

This cause is vacated and remanded for further proceedings consistent with the opinion herein.

It is, therefore, ordered that appellant recover from appellee his costs herein.

It is ordered that a special mandate be sent to said court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

JAMES D. SWEENEY, J., concurs.

MICHAEL J. CORRIGAN, J., dissents. __________________________ TIMOTHY E. MCMONAGLE, P.J.

¹ Franks v. Delaware (1978), 438 U.S. 154, 98 S.Ct. 2674,57 L.Ed.2d 667 (addressing issue of when a defendant is entitled, under the Fourth Amendment, to a hearing to challenge the veracity of the facts set forth in a warrant affidavit after the warrant has been issued and executed); see, also, Roviaro v. United States (1957), 353 U.S. 53, 77 S.Ct. 623,1 L.Ed.2d 639 (regarding disclosure of the identification of the confidential informant).