State v. Green

[Cite as State v. Green, 2013-Ohio-3728.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99196
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GREGORY L. GREEN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-557203
BEFORE: S. Gallagher, P.J., Kilbane, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: August 29, 2013
ATTORNEY FOR APPELLANT
James R. Willis
323 West Lakeside Avenue
Lakeside Place, Suite 420
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Maxwell M. Martin
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, P.J.:
{¶1} Appellant Gregory Green appeals from his conviction and the denial of a
motion to suppress. For the reasons stated herein, we affirm.
{¶2} On December 21, 2011, appellant was indicted on charges of illegal
manufacture or cultivation of marijuana in violation of R.C. 2925.04(A), drug trafficking
in violation of R.C. 2925.03(A)(2), drug possession in violation of R.C. 2925.11(A), and
possessing criminal tools in violation of R.C. 2923.24(A). The first three counts
included a one-year firearm specification, and all counts had forfeiture specifications.
Appellant entered a plea of not guilty to the charges.
{¶3} Appellant filed motions to suppress evidence on January 12, 2012, and March
27, 2012. Following a hearing, the trial court denied the motions. The matter proceeded
to a bench trial. The court found appellant guilty of illegal manufacture or cultivation of
marijuana with forfeiture specifications, drug possession with forfeiture specifications,
and possessing criminal tools with forfeiture specifications. The court found appellant
not guilty of drug trafficking. The court sentenced appellant to three years of community
control sanctions.
{¶4} Appellant filed this appeal, and his sole assignment of error challenges the
trial court’s decision denying his motion to suppress.
{¶5} In State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶
8, the Ohio Supreme Court set forth the following review standard for a motion to
suppress:
Appellate review of a motion to suppress presents a mixed question
of law and fact. When considering a motion to suppress, the trial court
assumes the role of trier of fact and is therefore in the best position to
resolve factual questions and evaluate the credibility of witnesses. State v.
Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. Consequently, an
appellate court must accept the trial court’s findings of fact if they are
supported by competent, credible evidence. State v. Fanning (1982), 1
Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583. Accepting these 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. State v. McNamara (1997), 124 Ohio App.3d 706, 707
N.E.2d 539.
{¶6} At the hearing on the motion to suppress, it was shown that appellant was
arrested on November 7, 2011, at 13917 Woodworth Avenue in Cleveland. On that date,
there was an active arrest warrant for appellant. Police arrived at the location after
receiving an anonymous tip as to where appellant could be found and confirming with a
neighbor that appellant stayed at the subject premises. The police surrounded the house,
knocked on the door, and announced themselves.
{¶7} Sergeant Sharpe saw a person look out a second-floor window. Detective
Riegelmayer, who had a canine, went to the back of the house. The detective smelled a
strong odor of marijuana emanating from the house. The canine never alerted him to the
presence of narcotics. Detective Riegelmayer testified that because the police were there
on an arrest warrant and looking for a person, he had given the canine a command to be
alert for a possible bite-order scenario and that the canine was not instructed to look for
narcotics. Sergeant Sharpe and Detective Robinson also went to the back of the house
and confirmed the smell of marijuana. The smell was described as a “strong odor,” “the
very robust smell,” and “a moist smell” of marijuana. Detective Riegelmayer did not
issue a subsequent narcotic command to the canine because he believed it was
unnecessary because the smell had already been detected by the officers.
{¶8} The officers also observed an exterior ventilation system coming from the
second floor. Detective Riegelmayer testified that there were two air-conditioning units
at the residence and one of them was running. It was 6:30 in the morning and cool
outside. He also noted that the shades were drawn or windows were covered. From his
experience, he indicated his observations were consistent with a grow house, which he
described as a place that is used for the manufacture of a large quantity of marijuana.
Detective Robinson also testified to his observations of a grow house. Detective
Riegelmayer and Detective Robinson then went to obtain a search warrant. They were
gone approximately two hours.
{¶9} In the meantime, the person in the house initially was uncooperative in
coming out. After a phone call was made, appellant was persuaded to come out of the
home. The police report indicated that appellant was apprehended at approximately 9:40
a.m. Detective Robinson indicated that nobody entered the home until the search warrant
arrived on the scene. A protective sweep of the home was conducted, followed by the
execution of the search warrant. The police found numerous marijuana plants in the
basement of the home, and there were leaves from the attic down to the basement.
Several plants had been destroyed. Among the confiscated items were 122 marijuana
plants, 14 large vacuum-sealed bags containing marijuana, 31 smaller bags containing
marijuana, and a firearm.
{¶10} Appellant argues that there was evidence of a warrantless search, that there
was a lack of probable cause to issue the search warrant, and that misinformation was
provided to obtain the search warrant. The defense claimed that the officers conducted a
protective sweep of the home after appellant had surrendered and prior to obtaining the
search warrant. Appellant’s position is that the officers originally intended to seek a
warrant to search the home for appellant, but once he surrendered and the cultivation was
seen, the officers devised a plan to obtain a search warrant by saying they detected the
odor of marijuana outside the home. Appellant further argues that Detective
Riegelmayer’s statements of smelling marijuana emanating from the second floor was
rebuffed by evidence that the air conditioner on the second floor was not connected by
any duct work to the basement.
{¶11} The trial court rejected the defense position. With regard to witness
testimony offered by the defense, the trial court had “a lot of trouble finding them
credible witnesses * * *. I did not find anybody’s testimony corroborated so sufficiently
that I can make a finding that they knew that the warrant was not executed at the time that
the police officer said so.” In finding their testimony as to the timing “totally incredible,
unbelievable[,]” the court indicated that it did not believe the defense witnesses were
lying, but instead found “they just did not know what they were seeing, and they did not
properly time this whole thing out.” Further, with regard to the testimony of a neighbor
who had not smelled any marijuana in the yard, the court indicated, “he had no idea what
raw marijuana smelled like.” In denying the motion to suppress, the trial court
recognized that “other testimony indicated that the police officers not only executed
properly the search warrant that they obtained, from what I understand, in a timely
manner.”
{¶12} While there was conflicting testimony in this matter, the trial court,
assuming the role of trier of fact, was in the best position to evaluate the credibility of the
witnesses. We are also cognizant that the use of the term “protective sweep” in
conjunction with the execution of a search warrant by police can create problems.
However, the police testimony in this case indicated that a “protective sweep” did not
occur prior to, or form the basis for, obtaining the search warrant. Rather, the state’s
evidence indicated that the police did not enter the home until after the search warrant
was obtained. Further, our review reflects that the court’s finding of a properly executed
search warrant is supported by competent, credible evidence in the record.
{¶13} In determining whether there is probable cause to issue a search warrant, a
judge or issuing magistrate must
“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. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 33, quoting
Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In
reviewing a probable-cause affidavit submitted in support of a search warrant, “‘trial 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.’” Id., quoting State v. George, 45 Ohio St.3d 325, 544 N.E.2d
640 (1989), paragraph two of the syllabus.
{¶14} In this case, Detective Robinson averred in the affidavit that the police were
at the subject house on an arrest warrant after receiving a tip and conferring with
neighbors who identified a male believed to be appellant residing at the address. The
affidavit further stated that an individual was observed looking out the upstairs window;
that Detective Riegelmayer identified “the strong odor of marijuana” coming from the
upstairs rear of the home, which was vented; and that the air conditioner was running.
Detective Robinson averred that because of these facts, “he has probable cause to believe,
and does believe, a marijuana ‘grow house’ operation is being conducted at the * * *
premises.” The Ohio Supreme Court has found that the odor of marijuana, as detected
by a person who is qualified to recognize the odor, is sufficient to establish probable
cause. State v. Moore, 90 Ohio St.3d 47, 49-51, 2000-Ohio-10, 734 N.E.2d 804. In this
case, both Detective Riegelmayer and Detective Robinson testified to their qualifications
and experience in detecting the smell of raw marijuana and with observing grow houses.
{¶15} While it was shown that the second-floor air conditioner was not connected
to the basement, appellant failed to make a sufficient showing that the search-warrant
affidavit contained false statements that were made intentionally or with a reckless
disregard for the truth. The officers’ observations of a strong odor of marijuana, an
exterior ventilation system, and a running air conditioner with a cool outside temperature
were sufficient to support probable cause of a marijuana grow operation in the home.
Additionally, the execution of the warrant and resulting seizure of contraband would fall
within the standards of the “good faith exception” to the exclusionary rule set forth in
United States v. Leon, 468 U.S. 897, 919, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
{¶16} We find that the facts in the affidavit gave the judge issuing the warrant a
substantial basis for concluding that a fair probability existed that narcotics and other
contraband would be found on the premises. Affording deference to the determination of
probable cause, we uphold the validity of the search warrant.
{¶17} Upon our review, we find the trial court properly denied the motion to
suppress. Appellant’s sole assignment of error is overruled.
{¶18} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
EILEEN T. GALLAGHER, J., CONCUR