State v. Thomas

[Cite as State v. Thomas, 2014-Ohio-1489.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant, : No. 12AP-928
(C.P.C. No. 11CR-04-2004)
v. :
(REGULAR CALENDAR)
Demetrius Thomas, :
Defendant-Appellee. :
D E C I S I O N
Rendered on April 8, 2014
Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
appellant.
Fred Thomas, for appellee.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶ 1} This is an appeal by plaintiff-appellant, State of Ohio ("state"), from an
entry of the Franklin County Court of Common Pleas granting a motion to suppress filed
by defendant-appellee, Demetrius Thomas.
{¶ 2} On April 15, 2011, appellee was indicted on one count of illegal cultivation of
marijuana, in violation of R.C. 2925.04. On February 16, 2012, he filed a motion to
suppress, arguing in part that a search warrant executed at his residence was not
supported by probable cause. On September 19, 2012, the state filed a memorandum
contra the motion to suppress.
No. 12AP-928 2
{¶ 3} On September 27, 2012, the trial court conducted a hearing on the motion
to suppress. During the hearing, the state presented the testimony of Franklin County
Sheriff's Detective Jeffrey Edwards, who has been a detective with the sheriff's
department more than ten years, with approximately eight years experience as a narcotics
detective. He has conducted "[h]undreds" of narcotics investigation, and executed 70 to
200 search warrants. (Tr. 7.)
{¶ 4} In April 2010, Detective Edwards received an anonymous tip from a citizen
regarding "marijuana activity" at appellee's residence. (Tr. 8.) Detective Edwards went to
appellee's residence, located at 5922 Wellbrid Drive, but "[n]obody was home." (Tr. 11.)
He walked past the garage door and "smelled the aroma of marijuana." (Tr. 11.) Detective
Edwards testified he was familiar with the smell of marijuana, having investigated "many,
many grows." (Tr. 11.) He also obtained a subpoena for electricity usage records for the
residence, as well as the usage records for "three surrounding houses on the same road."
(Tr. 9.) According to Detective Edwards, the electricity usage at appellee's residence was
"extremely high" in comparison to the other area residences. (Tr. 10.) He testified that
the high electrical usage "is indicative of a lot of grow lights in a residence sucking up
electricity, which pretty much tells me that there would probably be a grow in that house."
(Tr. 11.)
{¶ 5} Detective Edwards prepared a search warrant affidavit based upon the
information he had obtained. A judge with the Franklin County Municipal Court signed
the warrant, and Detective Edwards and other law enforcement officers executed the
warrant at appellee's residence on September 29, 2010. The officers discovered
marijuana "in various parts of the house," including "live plants in the basement," as well
as "several dead plants in the garage." (Tr. 14.) The officers also found "U.S. currency in
various parts of the house" and a weapon. (Tr. 14.)
{¶ 6} By decision and entry filed October 22, 2012, the trial court held that the
issuing judge "did not have a substantial basis for concluding that probable cause existed."
The court therefore granted appellee's motion to dismiss and also dismissed the
indictment.
{¶ 7} On appeal, the state sets forth the following two assignments of error for
this court's review:
No. 12AP-928 3
[I.] THE TRIAL COURT COMMITTED REVERSIBLE
ERROR BY SUPPRESSING THE EVIDENCE OBTAINED
PURSUANT TO THE SEARCH WARRANT.
[II.] THE TRIAL COURT ERRED BY DISMISSING THE
INDICTMENT.
{¶ 8} Under its first assignment of error, the state asserts that the trial court erred
in suppressing the evidence obtained pursuant to the search warrant. The state argues
that the affidavit of Detective Edwards provided independent police corroboration of the
tip sufficient to establish probable cause.
{¶ 9} An appellate court's review of a motion to suppress "involves a mixed
question of law and fact. 'In a motion to suppress, the trial court assumes the role of trier
of fact and is in the best position to resolve questions of fact and evaluate witness
credibility.' " State v. Baro, 10th Dist. No. 12AP-968, 2013-Ohio-5139, ¶ 7, quoting State
v. Curry, 95 Ohio App.3d 93, 96 (8th Dist.1994). A reviewing court "must accept the trial
court's findings of fact in ruling on a motion to suppress if the findings are supported by
competent, credible evidence." Id., citing State v. Claytor, 85 Ohio App.3d 623, 627 (4th
Dist.1993). Further, "[a]ccepting the facts as true, the reviewing court must then
independently determine as a matter of law, without deference to the trial court's
conclusion, whether the facts meet the appropriate legal standard." Id., citing State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
{¶ 10} In determining whether an affidavit submitted in support of a search
warrant demonstrates probable cause, " '[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, 45 Ohio St.3d 325 (1989),
paragraph one of the syllabus, quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983).
Further, "reviewing courts may not substitute their own judgment for that of the issuing
magistrate by conducting a de novo determination as to whether the affidavit contains
sufficient probable cause upon which the reviewing court would issue the search warrant."
Id. at 330. Rather, "under the totality-of-the-circumstances analysis of Gates," the issue
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before the court is whether the detective's affidavit "provided a substantial basis for the
magistrate's conclusion that there was a fair probability that marijuana or related
paraphernalia would be found in the defendant's residence." (Emphasis omitted.) Id. A
reviewing court 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 ¶ 2 of the syllabus, citing Gates.
{¶ 11} With respect to confidential or anonymous informants, "their veracity,
reliability and basis of knowledge are all highly relevant in determining probable cause,"
and thus " '[t]here must be some basis in the affidavit to indicate the informant's
credibility, honesty or reliability.' " State v. Pustelnik, 8th Dist. No. 91779, 2009-Ohio-
3458, ¶ 22, quoting State v. Harry, 12th Dist. No. CA2008-01-0013, 2008-Ohio-6380,
¶ 20. However, "a deficiency in one of these principles does not negate probable cause if
there is a strong showing on another or if there is some other indicia of reliability." Id.,citing Gates. Ohio courts have held that, even where there is an absence of evidence in an
affidavit to demonstrate an affiant’s prior knowledge of the veracity of a confidential
informant, corroboration of the informant’s statements by police investigation can
provide "sufficient indicia of the reliability and veracity of the informant's statements."
Id. at ¶ 23.
{¶ 12} In the instant case, the affidavit submitted to the municipal court judge
includes the following information: (1) Detective Edwards has over ten years of law
enforcement experience; for the past 65 months he has been assigned to the Special
Investigation Unit conducting undercover narcotics investigations, and he has
participated in over 150 search warrants, (2) in April 2010, a confidential source informed
Detective Edwards that appellee, the occupant of 5922 Wellbrid Drive, Galloway, was
suspected of growing marijuana inside his residence, (3) the detective learned that
appellee has a lengthy criminal history, (4) on September 21, 2010, the detective
approached the main entrance of 5922 Wellbrid Drive and smelled the odor of marijuana
emanating from the garage door area of the residence, (5) on September 27, 2010,
Detective Edwards received subpoena results from the American Electric Power Company
showing an unusually high kilowatt usage for 5922 Wellbrid Drive for the months of April
through September 2010, indicating an extensive marijuana grow could be inside the
No. 12AP-928 5
residence, and (6) the detective received three additional subpoena results from
neighboring residences of similar size and shape which show "far less kilowatt usage over
the same time period."
{¶ 13} In granting appellee's motion to suppress, the trial court found the affidavit
lacking in information to support the "informant's credibility." Under the Gates analysis,
however, "the focus of the probable cause inquiry is the totality of the circumstances
presented in the affidavit, not each component standing alone." (Emphasis sic.) State v.
Robinson, 7th Dist. No. 10 CO 37, 2011-Ohio-6639, ¶ 23, citing George, citing Gates.
Thus, "[e]ven in cases involving anonymous informants, a tip is sufficient where certain
important or key elements of the tip are corroborated by police observation or
investigation." State v. Ross, 6th Dist. No. L-96-266 (Jan. 16, 1998). See also State v.
Goddard, 4th Dist. No. 97CA23 (Oct. 2, 1998) (while affidavit was lacking in showing a
basis for anonymous informant's knowledge and in establishing his veracity, the
corroborating efforts by police officers made search constitutional). Nor did the
investigative officer in this case "need probable cause to follow-up on the anonymous tip."
State v. Baas, 10th Dist. No. 13AP-644, 2014-Ohio-1191, ¶ 15 (detective's lack of
knowledge of the informant's identity did not undermine the judge's probable cause
determination).
{¶ 14} Upon review of the affidavit, we agree with the state that the information
provided by the detective was sufficient for the municipal court judge to issue the search
warrant. Here, the detective corroborated the informant's tip when he went to the
residence and smelled the odor of marijuana emanating from the garage. The Supreme
Court of Ohio has held that "the 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, 53 (2000). The affidavit included additional corroborating
information in the form of the electric usage records obtained by the detective, reflecting
that appellee's residence had an unusually high kilowatt usage, and that similar
residences indicated far less electric usage over the same period of time. See State v.
Gantz, 106 Ohio App.3d 27, 34 (10th Dist.1995) (evidence that defendant's electrical bill
was larger than comparable residences in the area tended to corroborate informant's
statement that defendant was growing marijuana inside residence). The affidavit also
No. 12AP-928 6
outlined the detective's qualifications, training and experience with narcotics
investigations. Based upon the totality of the circumstances, the issuing municipal court
judge had a substantial basis to conclude there was a fair probability that the residence at
5922 Wellbrid Drive was the site of marijuana cultivation. See, e.g., State v. Green, 8th
Dist. No. 99196, 2013-Ohio-3728, ¶ 15 (anonymous tip and officer's observations of strong
smell of marijuana, exterior ventilation system and running air conditioner sufficient to
support probable cause of marijuana grow operation).
{¶ 15} Accordingly, we sustain the state's first assignment of error.
{¶ 16} Under the second assignment of error, the state contends the trial court
erred in dismissing the indictment. The state notes that the last sentence of the trial
court's decision, following the court's granting of the motion to suppress, states:
"Accordingly, the indictment is hereby DISMISSED." The state argues that the trial
court's use of the word "accordingly" indicates the court felt that the suppression of the
evidence authorized it to dismiss the indictment.
{¶ 17} In light of our determination that the trial court erred in granting the
motion to suppress, we further conclude that the trial court erred in dismissing the
indictment. See State v. Moore, 1st Dist. No. C-130170, 2013-Ohio-5613, ¶ 7 ("If a motion
requires the examination of evidence beyond the face of the indictment or complaint, the
issue must be presented in a motion for acquittal at the close of the state's case."). We
therefore sustain the state's second assignment of error.
{¶ 18} Based upon the foregoing, the first and second assignments of error are
sustained, the judgment of the Franklin County Court of Common Pleas is reversed, and
this matter is remanded to that court for further proceedings in accordance with law,
consistent with this decision.
Judgment reversed and cause remanded.
KLATT and CONNOR, JJ., concur.
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