State v. Bangera

[Cite as State v. Bangera, 2016-Ohio-4596.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2015-G-0021
- vs - :
DOMINIC A. BANGERA, :
Defendant-Appellant. :
Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 14 C
000106.
Judgment: Affirmed.
James R. Flaiz, Geauga, County Prosecutor, and Christopher J. Joyce, Assistant
Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For
Plaintiff-Appellee).
Mark B. Marein, Marein & Bradley, 222 Leader Building, 526 Superior Avenue,
Cleveland, OH 44114 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Appellant, Dominic A. Bangera, appeals his conviction in the Geauga
County Court of Common Pleas, following a bench trial, of trafficking in heroin and
related felonies along with major drug offender specifications. The principal issue is
whether the trial court erred in denying appellant’s motion to suppress evidence
obtained during a search of his residence pursuant to a search warrant. For the
reasons that follow, we affirm.
{¶2} On June 3, 2014, a United States Postal Service Investigator advised
Geauga County Sheriff’s detectives that appellant and his wife, Jaqueline Sanchez, who
reside at 15590 Parkview Drive in Newbury Township, were suspects in a money-
laundering investigation involving their suspicious purchases of money orders.
{¶3} Based on this information, on June 11, 2014, Detective Steven
Deardowski of the Sheriff’s Office conducted a trash pull at appellant’s residence.
During the trash pull, Detective Deardowski discovered evidence of drug activity as well
as evidence that confirmed the Postal Service’s report. Based on the foregoing
information, Detective Deardowski presented the Judge of the Chardon Municipal Court
with an affidavit for a search warrant and a proposed search warrant for appellant’s
residence. The detective’s affidavit provided, in pertinent part:
{¶4} On June 3, 2014, detectives were provided information from the
U.S. Postal Service that the residents of 15590 Parkview Dr.,
Newbury Twp. are suspects in a money laundering investigation.
The detectives were informed that residents (Jaqueline Sanchez &
Dominick Bangera) of that address have been involved in
purchasing money orders for large amounts of money. The U.S.
Postal Service stated these purchases have been suspicious
because they are consistently purchasing the [money] orders just
under the $3,000.00 threshold.
{¶5} On June 11, 2014, detectives conducted a trash pull at the
residence with the assistance of Universal Disposal. The trash
collected was monitored from the curb side to where it was
processed at the Sheriff’s Office.
{¶6} During a search of the garbage one bud of marijuana was found in
conjunction with the top portion of a heat seal bag. It should be
noted that heat seal bags are often used in the packaging of
marijuana.
2
{¶7} (4) money order receipts were located noting (11) money order
transactions totaling an amount of approximately $7,017.00. The
dates on these receipts were 2/18/14, 5/7/14, 5/30/14 and 6/4/14.
{¶8} (2) Express Mail receipts [were located] for packages that were
sent to Pico Rivera, CA on 4/17/14 and 5/20/14.
{¶9} (2) Express Mail receipts [were located] for packages that were
sent to Montebello, CA on 5/12/14 and 5/30/14.
{¶10} It should be noted that resident Dominick Bangera has a prior drug
cultivation conviction in 2006.
{¶11} Information [was] provided from the U.S. Postal Service
Investigator that since an investigation was started approximately a
month ago approximately (20) money orders have been sent by the
suspects.
{¶12} Based on the above aforementioned investigation and my
experience, this Detective has probable cause to believe and does
believe that Jaqueline Sanchez and Dominick Bangera are in
violation of Ohio Revised Code Section 2925.03 Trafficking in
drugs, 2925.11 Possession of drugs, and 2923.24 Possessing
Criminal Tools. Furthermore this detective has probable cause to
believe and does believe that evidence related to these crimes
which occurred [is] in or on the property located at 15590 Parkview
Rd. Newbury Twp., Geauga County Ohio. The residence is
described as a two story single family home on the west side of
Park View Dr. with the front door facing south.
{¶13} Based on the foregoing affidavit, the Chardon Municipal Court Judge
signed and issued the search warrant. The warrant provided, in pertinent part:
{¶14} That in the Township of Newbury, Geauga County, Ohio, the
following criminal offense(s) ha[ve] occurred:
{¶15} Possession of Drugs R.C. §2925.11
{¶16} Trafficking in Drugs R.C. §2925.03
{¶17} That the following items of property are connected with the
commission of said offense(s):
{¶18} Drugs of abuse, * * * Drug Paraphernalia, * * * and other items
which are evidence of and in violation of ORC 2925.03 Trafficking
3
in Drugs. These items include but are not limited to scales,
packaging materials, paraphernalia, weapons, pagers, scanners,
notes, records, mail, ledgers, photographs, receipts, address
books, phone books, cell phones, any and all electronic
communication devices, caller ID boxes, answering machines,
financial records, conveyances, books, safes, safety deposit box
keys, U.S. currency, checks, money drafts, real estate drafts,
deposit slips, canceled checks, any funds gained from sales,
printouts, computers, media storage devices and evidence of
expenditure(s) of currency and currency equivalents, and items
bartered or sold in exchange for said contraband, and any vehicles
used in the transportation of said contraband.
{¶19} and all other fruits and instrumentalities of the crime at present time
unknown.
{¶20} The warrant was executed on the same day, June 11, 2014, and large
amounts of narcotics (including heroin, methamphetamine, and marijuana), bundles of
cash, money orders, and packaging materials were seized at appellant’s residence.
{¶21} Appellant admitted to detectives that he has been dealing drugs since
1998, including marijuana, cocaine, heroin, and meth.
{¶22} On July 25, 2014, appellant was charged in a 13-count indictment with
engaging in a pattern of corrupt activity, a felony of the second degree (Count 1); two
counts of aggravated trafficking in drugs, each being a felony of the first degree and
each with a major drug offender specification (Counts 2 and 3); two counts of trafficking
in heroin, each being a felony of the first degree and each with a major drug offender
specification (Counts 4 and 5); two counts of trafficking in marijuana, each being a
felony of the second degree (Counts 6 and 7); trafficking in drugs, a felony of the fourth
degree (Count 8); aggravated possession of drugs, a felony of the first degree, with a
major drug offender specification (Count 9); possession of heroin, a felony of the first
degree, with a major drug offender specification (Count 10); possession of marijuana, a
4
felony of the second degree (Count 11); possession of drugs, a felony of the fourth
degree (Count 12); and possession of criminal tools, a felony of the fifth degree (Count
13). Appellant pled not guilty.
{¶23} Subsequently, appellant moved to suppress the evidence obtained
pursuant to the search warrant. Following a hearing on the motion, the trial court
entered an exhaustive, 22-page judgment denying the motion to suppress.
{¶24} On the state’s motion, the trial court dismissed Counts 2, 4, and 6 of the
indictment. Appellant waived his right to a trial by jury and the case was tried to the
court. Following the trial, the court returned a verdict finding appellant guilty of all
remaining counts and the major drug offender specifications.
{¶25} Following a sentencing hearing, the trial court sentenced appellant to an
aggregate term of 30 years in prison. Appellant appeals his conviction asserting three
assignments of error. For his first, he alleges:
{¶26} “The fruits of the search of the Bangera residence must be suppressed
because the warrant was not supported by probable cause to believe the enumerated
items to be seized would be found in the home.”
{¶27} Appellate review of a trial court’s ruling on a motion to suppress evidence
presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, ¶8. During a hearing on a motion to suppress evidence, the trial court
acts as the trier of fact and, as such, is authorized to resolve factual questions and
assess the credibility of witnesses. State v. Mills, 62 Ohio St.3d 357 (1992). An
appellate court reviewing a ruling on a motion to suppress is bound to accept the trial
court’s findings of fact where they are supported by competent, credible evidence. State
5
v. Guysinger, 86 Ohio App.3d 592, 594 (4th Dist.1993). Accepting these facts as true,
the appellate court independently determines, as a matter of law, without deference to
the trial court's conclusion, whether the facts meet the applicable legal standard. State
v. Djisheff, 11th Dist. Trumbull No. 2005-T-0001, 2006-Ohio-6201, ¶19.
{¶28} The Fourth Amendment of the United States Constitution provides: “The
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 * * *.”
{¶29} The Supreme Court of Ohio has held that “Section 14, Article I of the Ohio
Constitution * * * afford[s] the same protection as the Fourth Amendment in felony
cases.” State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, ¶10, fn. 1.
{¶30} Appellant asserts five issues with respect to this assigned error. First, he
argues the affidavit offered in support of the search warrant was overbroad in that it did
not particularly describe the items to be seized. In support, he argues the affidavit did
not include the same list of items to be seized as set forth in the search warrant or set
forth any connection, based on probable cause, between the items to be seized and the
alleged crimes.
{¶31} However, it is the search warrant, not the affidavit offered in support of the
warrant, that is subject to Fourth Amendment scrutiny. 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.” (Emphasis added.) “The manifest purpose of this particularity
requirement was to prevent general searches. * * * [T]he requirement ensures that the
6
search will be carefully tailored to its justifications, and will not take on the character of
the wide-ranging exploratory searches the Framers intended to prohibit.” Maryland v.
Garrison, 480 U.S. 79 (1987). By requiring a particular description of the items to be
seized, the Fourth Amendment “prevents the seizure of one thing under a warrant
describing another. As to what is to be taken, nothing is left to the discretion of the
officer executing the warrant.” Marron v. United States, 275 U.S. 192, 196 (1927).
{¶32} The United States Supreme Court, in Groh v. Ramirez, 540 U.S. 551, 557
(2004), held: “The Fourth Amendment by its terms requires particularity in the warrant,
not in the supporting documents.” This court followed Groh in State v. Gritten, 11th
Dist. Portage No. 2004-P-0066, 2005-Ohio-2082, ¶13. Since it is the warrant, not the
affidavit, that must particularly describe the things to be seized, the failure of the
affidavit to particularly describe the items to be seized does not support a constitutional
violation.
{¶33} Further, while Crim.R. 41(C) requires the affidavit to describe the items to
be seized, it is well-established that the exclusionary rule will not be applied to violations
of Crim.R. 41 that do not rise to the level of constitutional error. State v. Wilmoth, 22
Ohio St.3d 251, 262 (1986); State v. Applebury, 34 Ohio App.3d 376 (1st Dist.1987).
Since the Fourth Amendment does not require the affidavit in support of a search
warrant to describe the items to be seized, the failure of an affidavit to describe those
items does not result in application of the exclusionary rule.
{¶34} In any event, Crim.R. 41(C) does not require that the items to be seized
be described with particularity. That rule provides: “The affidavit shall name or describe
the person to be searched or particularly describe the place to be searched, name or
7
describe the property to be searched for and seized * * *.” (Emphasis added.) Thus, a
general description in the affidavit of the items to be seized would satisfy the rule.
{¶35} This court, in State v. Young, 146 Ohio App.3d 245, 256 (11th Dist.2000),
explained that evidence of drug trafficking set forth in an affidavit for a search warrant
would support a warrant for items likely to be found in the possession of a trafficker.
Further, the Sixth District’s discussion of the particularity requirement of search warrants
in State v. McCrory, 6th Dist. Wood Nos. WD-09-074, WD-09-090, 2011-Ohio-546, is
instructive:
{¶36} “The portions of the warrant limited to fruits and evidence of
gambling are sufficiently particular; even though those portions do
not contain a time limitation, their subject-matter limitation (fruits
and evidence of gambling) fulfills the same function as a time
limitation would have done, by limiting the warrant to evidence of
the crimes described in the affidavit. * * * Therefore, seizure of the
documents pertaining to the gambling and the closely related
money laundering charges was permissible.” McCrory at ¶40,
quoting United States v. Ford, 184 F.3d 566, 578 (6th Cir.1999).
{¶37} Here, the affidavit set forth evidence of drug trafficking and described the
items to be seized as evidence related to the crimes of trafficking in drugs, possession
of drugs, and possession of criminal tools. As a result, the affidavit satisfied the
description requirement of Crim.R. 41(C).
{¶38} We therefore hold the trial court did not err in finding that the affidavit
sufficiently described the items to be seized in terms of their being evidence of the
commission of the named crimes.
{¶39} For his second and third issues, appellant argues that the search warrant
was not supported by a showing of probable cause and that the items listed in the
warrant were not described with sufficient particularity.
8
{¶40} The Supreme Court of Ohio, in State v. George, 45 Ohio St.3d 325 (1989),
stated:
{¶41} In 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.” Id. at paragraph one of the syllabus, quoting Illinois v.
Gates, 462 U.S. 213, 238-239 (1983). Further, magistrates are
permitted to make common sense inferences supported by other
evidence in the affidavit. State v. Kinney, 83 Ohio St.3d 85, 96
(1998). In other words, the determination of the existence of
probable cause must be based on the totality of the circumstances
presented in the affidavit. George, supra, citing Gates, supra.{¶42} The Supreme Court of Ohio, in George, supra, further stated:
{¶43} In reviewing the sufficiency of probable cause in an affidavit
submitted in support of a search warrant issued by a magistrate,
neither a trial court nor an appellate court should 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. Rather, the duty of a reviewing court is simply to ensure
that the magistrate had a substantial basis for concluding that
probable cause existed. In conducting any after-the-fact scrutiny of
an 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. at
paragraph two of the syllabus, citing Gates, supra.{¶44} The Supreme Court of Ohio, in State v. Jones, 143 Ohio St.3d 266, 2015-
Ohio-483, ¶1, held: “Using the totality-of-the-circumstances test in this case, we hold
that the evidence seized from a single trash pull that corroborates tips and background
information involving drug activity is sufficient to establish probable cause for a warrant.”
The Court in Jones stated that “the trash pull in this case should have been considered
9
as a part of the totality of the circumstances, along with all of the other information
presented in the affidavit accompanying the request for the search warrant.” Id. at ¶15.
{¶45} Appellant argues that the search warrant here was essentially based only
on the single bud of marijuana and the top portion of a heat-sealed baggie, which were
found in appellant’s trash. Appellant relies heavily on Young, supra. In Young, the
police officer saw a single bag of suspected marijuana on the defendant’s dining room
table. From this evidence alone, the officer concluded it was likely that other drugs and
drug paraphernalia would be in the residence. Based on his affidavit, the officer
obtained a search warrant for the seizure of other drugs and contraband listed in the
affidavit. The trial court suppressed the evidence. This court affirmed, holding the
warrant was overbroad in that it was not limited to a search for marijuana and
marijuana-related paraphernalia. Id. at 256.
{¶46} However, Young is inapposite because, here, the evidence was not limited
to the bud of marijuana and a portion of the baggie. Rather, Detective Deardowski’s
affidavit provided evidence that appellant was involved in drug trafficking. The affidavit
stated that during the trash pull, the bud of marijuana was found together with the top
part of a heat-sealed baggie and that such bags are often used to package marijuana.
{¶47} In addition, the affidavit recited that on June 3, 2014, a Postal Service
Inspector advised the detectives that appellant and his wife were currently suspects in a
money-laundering investigation and that the couple was involved in purchasing money
orders for large amounts of money. The affidavit stated that, according to the inspector,
these money orders were suspicious because they were consistently for amounts just
under the $3,000 threshold. The affidavit stated that the Postal Service also advised
10
that since its investigation had begun one month ago, appellant had shipped about 20
money orders.
{¶48} Further, the trash pull revealed evidence that corroborated the Postal
Service’s report. The trash pull yielded four recent money order receipts, which
evidenced 11 money order purchases that totaled over $7,000. The affidavit also stated
that four Express Mail receipts showed that packages were recently sent to different
cities out of state. The affidavit also stated that appellant has a prior conviction for drug
cultivation in 2006.
{¶49} The Tenth District addressed strikingly similar facts in State v. Pearson,
10th Dist. Franklin No. 99AP-371, 2000 Ohio App. LEXIS 2492 (June 13, 2000). In
Pearson, following the defendant’s conviction of various drug offenses, she appealed,
arguing that the trial court erroneously denied her motion to suppress because the
affidavit in support of the warrant did not establish probable cause. The warrant
authorized a search for evidence of the defendant’s involvement in drug trafficking. The
affidavit explained how an informant told the affiant-detective that the defendant bought
$5,000 in money orders at the post office. She did not fill out a cash transaction report
when she bought the money orders, which was required with the amount of the money
orders. The detective said in his affidavit that the defendant had visited the post office
twice that day to buy money orders. The detective also said that drug traffickers
commonly use postal money orders to buy illegal drugs. In addition, a trash pull from
garbage bags found in front of the defendant’s home resulted in the discovery of three
baggies with cocaine residue. The affidavit also mentioned that the defendant had a
prior arrest for trafficking in drugs. The Tenth District held that the affidavit provided the
11
municipal court judge with sufficient information to conclude that a fair probability
existed that contraband or evidence of drug trafficking would be found at appellant's
home. Id. at *5. In support, the appellate court noted that the affidavit contained specific
examples of appellant's suspected involvement in illicit narcotics activity and, as such,
the municipal court judge properly issued the search warrant. Id.
{¶50} Further, while the instant search warrant described the items to be seized
in broad and generic terms, the warrant satisfied the particularity requirement of the
Fourth Amendment. In Young, supra, this court stated that the Fourth Amendment
requirement of particularity prevents “a general, exploratory rummaging in a person’s
belongings.” Id. at 256, quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971).
However, this court in Young continued, “[a] warrant describing ‘items to be seized in
broad and generic terms may be valid if the description is as specific as circumstances
and [the] nature of [the] activity under investigation permit.’” Young, supra, quoting
United States v. Wicks, 995 F.2d 964, 973 (10th Cir.1993). Further, a search warrant
containing a list of generic items likely to be found in the possession of a drug trafficker
is not overbroad where the warrant limits the items to be seized to items that are related
to the offenses of drug possession and drug trafficking. State v. Gonzales, 3d Dist.
Seneca Nos. 13-13-31, 13-13-32, 2014-Ohio-557, ¶34; State v. Young, 12th Dist.
Clermont No. 2005-08-074, 2006-Ohio-1784, ¶33.
{¶51} Thus, contrary to appellant’s argument, the fact that the search warrant
included a long list of generic items did not make the search warrant general or
exploratory because the warrant expressly qualified each item to be seized as being
connected with drug trafficking. We agree with the trial court’s finding that the
12
description of the items listed in the search warrant was sufficiently particular because
the warrant stated that each item was related to drug trafficking.
{¶52} We therefore hold the trial court did not err in finding the search warrant
was supported by probable cause as set forth in Detective Deardowski’s affidavit and
that the warrant was sufficiently particular in describing the items to be seized.
{¶53} For his fourth issue, appellant argues the municipal court judge failed to
function as a neutral and detached magistrate, rendering the search unconstitutional. A
judge or magistrate issuing a search warrant must be neutral and detached. State v.
Hobbs, 133 Ohio St.3d 43, 2012-Ohio-3886, ¶10. Further, a magistrate who is not
neutral and detached and instead acts as an adjunct law enforcement officer cannot
provide valid authorization for an otherwise unconstitutional search. United States v.
Leon, 468 U.S. 897, 914 (1984).
{¶54} Appellant relies on Lo-Ji Sales v. New York, 442 U.S. 319 (1979), in which
the United States Supreme Court held that the judicial officer did not act in a neutral and
detached manner. However, in Lo-Ji, the judicial officer actually participated in
conducting the search by identifying the items to be seized at the crime scene and
ordering the police to seize them. Id. at 322. While appellant concedes the municipal
court judge was not present during the search, he argues that Lo-Ji applies here: (1)
because the detective gave the issuing judge a synopsis of the case before she signed
the warrant, and (2) because the judge signed the warrant, which listed the items to be
seized, the judge implicitly told the police what to seize. However, neither reason is
convincing. The fact that Detective Deardowski provided a summary of the case to the
judge does not mean that she was not acting in a neutral and detached manner.
13
Further, the fact that the judge signed the warrant that listed the items to be seized does
not mean she told the officers what to seize; it merely means she agreed with the
detective’s listing of the items to be seized in the proposed warrant that he provided for
her review. Thus, there is no evidence to support appellant’s allegation that the issuing
judge failed to fulfill her duty to act in a neutral and detached manner.
{¶55} For his fifth issue, appellant argues Detective Deardowski’s affidavit was
defective because it included deliberately or recklessly false statements and omitted
material facts. The Supreme Court of the United States, in Franks v. Delaware, 438
U.S. 154, 171-172 (1978), set forth a two-part test to be applied in addressing such
challenge to affidavits offered in support of a search warrant. First, the defendant must
make a preliminary showing that the affiant included in his affidavit false statements that
were made deliberately or with reckless disregard for their truth. “Reckless disregard
for the truth” in this context means the affiant had serious doubts as to the truth of his
allegations, a very high standard. United States v. Williams, 737 F.2d 594, 602 (7th
Cir.1984). Second, the court must determine if the allegedly false statements were
necessary to the issuing judge’s finding of probable cause. Franks, supra.{¶56} Appellant argues that Detective Deardowski made three deliberately or
recklessly false statements: (1) that appellant was convicted of drug cultivation; (2) that
he had purchased money orders in amounts just under the $3,000 threshold; and (3)
that the trash pull was at appellant’s residence.
{¶57} However, none of the statements regarding these matters in the affidavit
rose to the level of being deliberately or recklessly false. First, while appellant was
arrested for drug cultivation, in fact, he pled guilty to permitting drug abuse. Detective
14
Deardowski testified at the suppression hearing that he read the LEADS report before
drafting the affidavit and misunderstood it to mean that appellant was convicted of drug
cultivation. He testified that, while he learned about this mistake after the warrant was
signed, at the time he drafted the affidavit, he believed that appellant had been
convicted of drug cultivation. The trial court’s finding that Detective Deardowski was
negligent rather than reckless in this regard is supported by State v. Waddy, 63 Ohio
St.3d 424 (1990). In Waddy, the Supreme Court of Ohio held that misreading a LEADS
report is negligence, not recklessness, and negligence is insufficient to invalidate an
affidavit for a search warrant. Id. at 441.
{¶58} Second, Detective Deardowski stated in his affidavit that before he drafted
it, he received information from the Postal Service that appellant had repeatedly
purchased money orders and that these purchases were suspicious because the
amount of the money orders was always just under $3,000. However, at trial, Postal
Inspector Mark Kudley testified he did not report that appellant’s activities were
suspicious because he was purchasing money orders for just under $3,000. Rather, he
testified that appellant’s activities were suspicious because he was repeatedly
purchasing money orders on the same day from different post office locations, thus
splitting-up his purchases. Mr. Kudley said that money orders over $3,000 require the
purchaser to report his personal information. Mr. Kudley said that if appellant had
bought the money orders from the same location, the aggregate amount of money
orders he bought on any given day would have exceeded the $3,000 threshold, and he
would have had to report his personal information.
{¶59} Under Franks, supra, the defendant has the burden to present evidence
15
that at the time the affidavit was prepared, the affiant’s statement was intentionally or
recklessly false. Regardless of the discrepancy about how appellant kept under the
$3,000 threshold, the trial court found the detective’s testimony to be credible.
{¶60} Third, appellant argues that Detective Deardowski’s statement in his
affidavit that the trash pull occurred at appellant’s residence was deliberately or
recklessly false because it took place 100 feet in front of his residence at the end of his
driveway. The trial court found it insignificant that the trash can was 100 feet from
appellant's residence since trash cans are often put out by the road at the end of the
resident’s driveway. Thus, there was nothing deliberately or recklessly false or
misleading about Detective Deardowski’s statement.
{¶61} Appellant also argues that Detective Deardowski’s statement in his
affidavit that the marijuana bud was found “in conjunction with” the top portion of a heat-
sealed baggie was deliberately or recklessly false because the only connection between
the bud and the remnant of the baggie was that they were found in the same trash bag.
However, that was sufficient to support the detective’s statement and we perceive
nothing misleading about it.
{¶62} Further, appellant argues Detective Deardowski omitted from his affidavit
the fact that, eight days prior to execution of the search warrant, in response to a
complaint, a truck registered to appellant was located near his house and a dog sniff did
not result in an alert to the presence of drugs in the vehicle. Appellant argues the
detective intentionally omitted this fact in an effort to establish probable cause when
none existed. However, the trial court found this fact was insignificant because
Detective Deardowski said he was unaware of the negative dog sniff when he prepared
16
the affidavit. The court also found that even if knowledge of the negative dog sniff could
be imputed to the detective, it would have had little weight in determining probable
cause since the dog sniff occurred several days before issuance of the warrant. This
finding is supported by State v. Blaylock, 2d Dist. Montgomery No. 24475, 2011-Ohio-
4865, in which the Second District stated:
{¶63} The Sixth Circuit[, in Mays v. Dayton (6th Cir.1998), 134 F.3d 809,
held that a Franks hearing based on omissions from an affidavit in
support of a search warrant is merited “only in rare instances”
because “affidavits with potentially material omissions, while not
immune from Franks inquiry, are much less likely to merit a Franks
hearing than are affidavits including allegedly false statements.” Id.Because affidavits are drafted in the middle and during the rush of
a police investigation, the Sixth Circuit noted, “an affiant cannot be
expected to include every piece of information gathered in the
course of an investigation.” Id. In determining that no violation
occurred, the court set forth a test for omissions triggering a Franks
inquiry: “[E]xcept in the very rare case where the defendant makes
a strong preliminary showing that the affiant with an intention to
mislead excluded critical information from the affidavit, and the
omission is critical to the finding of probable cause, Franks is
inapplicable to the omission of disputed facts.” Id. at 816.
(Emphasis sic.) Blaylock, supra, at ¶15.
{¶64} We therefore hold the trial court did not err in finding that Detective
Deardowski did not deliberately or recklessly make any misstatement in his affidavit and
did not omit any facts with the intention to mislead.
{¶65} In any event, even if the search warrant was flawed, that would not be the
end of our analysis. In certain situations, a “good faith exception” to the exclusionary
rule exists when there is no police illegality to deter. Young, supra, at 257, citing State v.
George, supra, citing Leon, supra, at 923. The “good faith exception” provides that
where evidence is obtained by police acting in reasonable reliance on a search warrant
issued by a detached and neutral magistrate or judge, which is later determined to be
17
invalid, the evidence seized remains admissible. Young, supra, at 258, citing George at
paragraph three of the syllabus.
{¶66} To determine whether a police officer’s reliance on a search warrant was
reasonable, this court held the test is whether a reasonably well-trained officer would
have known that the search was illegal, despite the authorization of the issuing judge or
magistrate. State v. Hawkins, 120 Ohio App.3d 277, 282 (11th Dist.1997).
{¶67} While the trial court alternatively found that the good faith exception would
not apply, we do not agree. For the reasons discussed above, a reasonably well-
trained officer would not have known that the search was illegal, despite the
authorization of the issuing judge. Thus, even if we were to hold the search warrant was
invalid, the good faith exception would apply.
{¶68} Appellant’s first assignment of error is overruled.
{¶69} For appellant’s second assigned error, he contends:
{¶70} “The trial court erred when it failed to re-open the suppression hearing to
consider trial testimony that contradicted the testimony given by a law enforcement
officer during the motion to suppress (sic), and the court may consider the testimony.”
{¶71} This assignment of error revisits the alleged discrepancy between
Detective Deardowski’s statement in his affidavit and the trial testimony of Postal
Inspector Kudley regarding appellant’s apparent efforts to evade the $3,000 threshold.
Appellant argues that, due to this alleged inconsistency, the trial court should have re-
opened the suppression hearing.
{¶72} The decision whether to re-open a suppression hearing rests within the
sound discretion of the court, and will not be disturbed absent an abuse of discretion.
18
State v. Lashuay, 6th Dist. Wood No. WD-06-088, 2007-Ohio-6365, ¶19. Contrary to
appellant’s argument, the trial court did not ignore the apparently conflicting testimony.
Rather, the court considered the argument, but chose not to re-open the hearing
because appellant could have called, but failed to call, Mr. Kudley to testify at the
suppression hearing. Thus, appellant did not offer any new evidence in support of his
motion to re-open. Further, as noted above, the court found that Detective Deardowski’s
testimony was credible.
{¶73} Since the trial court stated its reasons that were supported by the record,
the trial court did not abuse its discretion in deciding not to re-open the suppression
hearing.
{¶74} Appellant’s second assignment of error is overruled.
{¶75} For his third and final assignment of error, appellant alleges:
{¶76} “The major drug offender specification should have been dismissed.”
{¶77} Appellant filed a motion to dismiss the major drug offender specification
provided for at R.C. 2925.03 and R.C. 2925.11, which require that such offenders be
given the maximum sentence. Appellant argued the specification is unconstitutional
because it gives the state the authority to seek greater punishment for the underlying
offense without proof of any additional fact or element. The court denied the motion.
{¶78} In support of his argument, appellant contends that the major drug
offender specification is analogous to the OVI offender specification, which the Eighth
District held to be unconstitutional in State v. Klembus, 8th Dist. Cuyahoga No. 100068,
2014-Ohio-3227.
{¶79} In Klembus, the defendant argued that the repeat OVI offender
19
specification allows the prosecutor to “arbitrarily obtain a greater prison sentence for the
underlying offense without proof of any additional element, fact, or circumstance.” Id.
at ¶7. Agreeing with the defendant, the Eighth District held that a repeat OVI offender
may be subjected to an increased penalty solely at the prosecutor’s discretion when
deciding whether to present the repeat OVI offender specification to the grand jury. Id.
at ¶19. “The increased penalty does not depend upon the jury finding any additional
elements, facts, or circumstances beyond a reasonable doubt.” Id.
{¶80} The Eighth District in Klembus relied on State v. Wilson, 58 Ohio St.2d 52(1979), to support its holding. In Wilson, the Ohio Supreme Court held that
prosecutorial discretion, standing alone, does not violate equal protection. Id. at 55.
However, if two statutes “prohibit identical activity, require identical proof, and yet
impose different penalties, then sentencing a person under the statute with the higher
penalty violates the Equal Protection Clause.” Id. at 55-56. Therefore, the Eighth District
in Klembus held that, in light of the prosecutor’s discretion and the fact there is no
requirement to apply the specification uniformly to all offenders, the repeat OVI
specification is not rationally related to a legitimate state purpose. Klembus at ¶21-23.
{¶81} The Supreme Court of Ohio allowed a discretionary appeal of Klembus,
and in State v. Klembus, ___ Ohio St.3d ___, 2016-Ohio-1092, reversed the Eighth
District’s decision. The Supreme Court distinguished Wilson, supra, noting that in
Wilson, the defendant challenged the constitutionality of the burglary statute and the
aggravated burglary statute, arguing that the two statutes imposed different
punishments for identical criminal conduct and thus violated equal protection. Id. at 55-
56. In contrast, the Supreme Court stated that specifications such as the repeat OVI
20
offender specification do not prohibit conduct; they merely add sentencing
enhancements to the violation of a predicate statute. Id. at ¶17. Thus, the Supreme
Court held that because that case did not involve multiple criminal offenses, equal
protection was not implicated. Id. at ¶18. The Supreme Court further held that the
possibility of longer prison sentences for OVI offenders who continue to violate the OVI
statute is rationally related to the state’s interest in punishing repeat offenders and
protecting the public and, thus, the repeat OVI offender specification does not violate
equal protection. Id. at ¶22.
{¶82} The analysis adopted by the Supreme Court in Klembus applies with
equal force to the major drug offender specification because that specification, like the
repeat OVI offender specification, does not prohibit conduct; it merely adds sentencing
enhancements (based on the amount of drugs involved) to the violation of a predicate
drug offense. As such, the major drug offender specification does not violate equal
protection.
{¶83} We therefore hold the trial court did not err in denying appellant’s motion
to dismiss the major drug offender specification.
{¶84} For the reasons stated in this Opinion, the assignments of error are
overruled. It is the order and judgment of this court that the judgment of the Geauga
County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, J., concurs,
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
_____________________
21
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
{¶85} I respectfully dissent.
{¶86} Appellant argues that Detective Deardowski’s affidavit does not contain
sufficient information to support the search warrant issued in this case. He observes
that only one bud of marijuana was found in this trash, and that the partial baggie also
found in the trash was never checked for marijuana residue. The Eighth District has
found that failure to test a baggie allegedly used for storing marijuana militates against
using the discovery of the baggie in support of a search warrant in a drug case. State v.
Kelly, 8th Dist. Cuyahoga No. 91137, 2009-Ohio-957, ¶20.
{¶87} Appellant further cites to this court’s decision in State v. Young, supra. In
that case, police were helping the Ashtabula housing inspector execute an
administrative warrant, when they spotted a baggie containing marijuana in plain view.
Id. at 249. Based on this, the police obtained a second warrant, allowing them to seize
drugs and related contraband, generally. Id. at 250. Large quantities of marijuana,
money and cocaine were discovered. Id. Appellant was indicted, and moved to
suppress, which motion the Ashtabula County Court of Common Pleas granted. Id. at
251-252.
{¶88} This court reviewed the testimony of the detective obtaining the warrant in
the Young case and observed:
{¶89} “The implication of Detective Pouska’s testimony is that on the basis of his
observation of a single baggy of marijuana, he had determined that appellee’s
residence was a ‘drug house,’ which conclusion was reinforced by his erroneous
assumption that a ‘laundry list’ affidavit and search warrant form had universal and
22
omnipotent application regardless of the substantive scope of probable cause existing in
a specific case. The assumption that appellee’s residence was a ‘drug house’ was not
supported by any other evidence: Detective Pouska had not received a tip from an
informant; he had not received complaints from a neighbor; the police had not observed
the house; nor had they attempted to make a controlled buy; and, Detective Pouska had
no other direct evidence of any other contraband items to provide a panoramic basis of
trustworthy probable cause.
{¶90} “In short, Detective Pouska treated his observation of a small baggy of
marijuana in appellee’s home as evidence of trafficking. In the absence of other indicia
of trafficking, this was a violation of appellee’s basic right to be free from unreasonable
searches. The search warrant should have been narrowly tailored to include those
items which the police could have reasonably anticipated finding on the basis of
observing a single baggy of marijuana, which would have included marijuana and
marijuana related paraphernalia.” Young at 255-256.
{¶91} Similarly, in this case, appellant contends Detective Deardowski’s affidavit,
recounting the discovery of a single bud of marijuana in his trash, along with a partial
baggie never tested for drug residue, were insufficient facts to give the Chardon
Municipal Court probable cause to issue the wide-ranging warrant in this case.
{¶92} Citing to Jones, supra, the majority finds that the totality of the
circumstances set forth in Detective Deardowski’s affidavit constituted probable cause
for the warrant to issue. In particular, the majority notes that appellant and his wife were
under investigation for money laundering, and that drug traffickers often launder money.
The majority further points to appellant’s 2006 drug conviction. Combined with the
23
report from the U.S. Postal Inspector about the money laundering investigation, the
majority contends the totality of the circumstances justified the warrant issued.
{¶93} This writer respectfully disagree. Jones is easily distinguished from the
instant case. In that case, the trial court granted a motion to suppress based on a
single trash pull, which ruling the Eighth District affirmed. Jones, supra, at 268. The
state appealed to the Supreme Court of Ohio, which reversed. Id. at 270-271. As the
Supreme Court noted, the trash pull itself revealed bottles of chemicals used for
methamphetamine production, and methamphetamine residue on plastic tubing. Id. at
267-268. The police had a report from a confidential informant that a woman named
“Lauren” was manufacturing methamphetamine. Id. at 267. They learned a woman
named Lauren Jones lived at the address where the trash pull eventually occurred –
they found her mail in the trash pull. Id. The totality of the circumstances clearly
supported the warrant which eventually issued.
{¶94} In the present case there was the suspicion of money laundering, provided
by the U.S. Postal Inspector, in conjunction with other evidence which may have
supported a warrant to issue regarding whether appellant was engaged in money
laundering. However, it is clear that a single marijuana bud in his trash, along with an
eight year old drug conviction, did not provide sufficient evidence to justify a search
warrant directed to drug trafficking. The search warrant should have been narrowly
tailored to money laundering. The supporting affidavit did not provide probable cause
for the overbroad warrant which issued in this case.
{¶95} Finding that the first assignment of error has merit I would decline to reach
the remaining assignments of error, deeming them moot.
24
25