eCases

(1978). Second, he claims the trial court
erred in finding that the affidavit established probable cause for a search warrant.
{¶ 3} The record reflects that Kilbarger was indicted on the above charges as well as
drug trafficking and engaging in a pattern of corrupt activity. The evidence against him was
obtained through execution of a search warrant at his home. Agent Charlie Stiegelmeyer of the
Ohio Bureau of Criminal Investigation obtained the warrant by presenting the issuing judge with
a probable-cause affidavit. Following his indictment, Kilbarger moved to suppress the evidence.
He argued that Stiegelmeyer’s affidavit contained false or misleading statements or material
omissions in violation of Franks. He also asserted that the affidavit failed to establish probable
cause even absent a Franks violation.
{¶ 4} The trial court held a December 2, 2011 hearing on the Franks issue. At the
conclusion of the hearing, it held that Kilbarger had “failed to make a preliminary showing by a
preponderance of the evidence that the affiant, with an intent to mislead, either excluded crucial
information from the affidavit or provided false or misleading information in the affidavit.”
(Franks Tr. at 109). Therefore, the trial court found no viable Franks issue and overruled that
portion of the suppression motion. (Doc. #112). It separately concluded that Stiegelmeyer’s
affidavit established probable cause for a search warrant and overruled the remainder of the
suppression motion. (Doc. #121). The trial court later denied reconsideration of its Franks ruling.
(Doc. #138, 141). At trial, a jury acquitted Kilbarger on the drug-trafficking and corrupt-activity
3
charges but found him guilty of possessing cocaine and marijuana. The trial court imposed an
aggregate two-year prison sentence. (Doc. #219). This appeal followed.
{¶ 5} As a means of analysis, we turn first to Kilbarger’s second assignment of error.
There he contends the trial court erred in finding that Stiegelmeyer’s affidavit justified the
issuance of a warrant to search his residence for drugs.1 Kilbarger asserts (1) that the affidavit
failed to establish probable cause and (2) that any information related to the presence of drugs in
his house was stale.
{¶ 6} “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.’” State v. George,

45 Ohio St.3d 325

544 N.E.2d 640

 (1989), paragraph one of the
syllabus, quoting Illinois v. Gates,

462 U.S. 213

, 238-239,

103 S.Ct. 2317

76 L.Ed.2d 527

(1983).
{¶ 7}       “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.”

 at paragraph two of the syllabus. “Rather, the duty of a reviewing court is
1
For purposes of his second assignment of error, Kilbarger ignores the alleged Franks violation. Even considering Stiegelmeyer’s
entire affidavit, he argues that it falls short of supporting the issuance of a warrant. We will address this argument first because the alleged
Franks violation is moot if Kilbarger is correct.
4
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.”

{¶ 8} With the foregoing standards in mind, we hold that the issuing judge had a
substantial basis for finding probable cause to believe drugs would be found inside Kilbarger’s
home at 508 West Sherry Street in Trotwood. In his June 21, 2010 affidavit, Stiegelmeyer recited
his nearly three decades of law-enforcement experience, including fourteen years performing
narcotics investigations. (Stiegelmeyer affidavit at ¶1). He then averred that in October 2009 he
received information from a confidential informant (“CI”) regarding the drug-trafficking
activities of McCartney and Kilbarger. (Id. at ¶2). The CI advised him that McCartney and
Kilbarger “are large cocaine and marijuana traffickers operating in the Montgomery County
area.” (Id. at ¶3). The CI stated that McCartney led the operation and that Kilbarger helped
distribute the drugs. (Id.). The CI also told Stiegelmeyer that McCartney “uses property owned by
Kilbarger and others to conceal assets and narcotics from authorities.” (Id.). According to the
affidavit, the CI “has been proven credible and reliable by making controlled purchases of
narcotics” and by “providing information, which was later verified to be true through
independent investigative methods by Affiant.” (Id. at ¶2).
{¶ 9} Stiegelmeyer described an October 2009 controlled buy during which he worked
undercover with the CI and purchased a pound of marijuana from McCartney. (Id. at ¶5). He
recounted a similar incident in April 2010 where the CI participated in a controlled buy and
5
purchased an ounce of cocaine from McCartney. (Id. at ¶6). Although these drug buys involved
McCartney rather than Kilbarger, they nevertheless helped establish the CI’s veracity.
{¶ 10} Thereafter, in May 2010, the CI advised Stiegelmeyer that Kilbarger owned a
home at 508 West Sherry Street. The CI “stated that McCartney and Kilbarger use this residence
to store narcotics and contraband and the CI has been to this residence in the past to purchase
narcotics from McCartney and Kilbarger.” (Id. at ¶7). On appeal, Kilbarger correctly points out
the CI’s failure to specify when he had purchased drugs at 508 West Sherry Street. We note,
however, that Stiegelmeyer’s rendition of what the CI said was in the present tense in May 2010
when informing Stiegelmeyer that McCartney and Kilbarger “use this residence to store
narcotics[.]”
{¶ 11} Stiegelmeyer also recounted an incident in May 2010 when the CI arranged to
purchase two ounces of cocaine from McCartney. Prior to the transaction, agents established
surveillance of McCartney’s residence and Kilbarger’s residence. (Id. at ¶8). The agents watched
Kilbarger arrive at McCartney’s residence and hand McCartney a white paper bag. Agents saw
McCartney then leave and meet the CI. According to the affidavit, McCartney was observed
handing the CI the same white paper bag, which agents later discovered contained two ounces of
cocaine. (Id.). This transaction helped establish the CI’s veracity and basis of knowledge with
regard to Kilbarger’s participation in drug-trafficking activities.
{¶ 12} Stiegelmeyer also described apparent drug activity involving McCartney and
Kilbarger that occurred in June 2010. On that occasion, he directed the CI to purchase two ounces
of cocaine from McCartney. (Id. at ¶11). As they had done before, agents first established
surveillance of McCartney’s residence and Kilbarger’s residence. They watched McCartney
6
arrive at Kilbarger’s home, enter, and leave a short time later. McCartney returned to his own
home, where he stayed briefly before leaving to meet the CI. Agents observed McCartney hand
the CI a baggie of cocaine and then return to his home. Kilbarger arrived at McCartney’s
residence soon thereafter. He met briefly with McCartney and then returned to his home, where
he stayed for a short time before leaving again. (Id.). Addressing the foregoing movements of
McCartney and Kilbarger, Stiegelmeyer opined that “through his training and experience this
pattern reflects patterns used by narcotics organizations when distributing narcotics and
transporting money after the sale of narcotics.” (Id.).
{¶ 13} Finally, Stiegelmeyer’s affidavit contained the following summation:
Affiant is a trained narcotics investigator with over 27 years [of] law
enforcement experience with the last 14 years being dedicated to investigating
narcotics offenses. Your Affiant has obtained information from a proven credible
and reliable informant that Robert McCartney and A.J. Kilbarger are operating a
large scale marijuana and cocaine distribution organization which operates in the
Montgomery County, Ohio area. Affiant has independently corroborated
information supplied by the confidential informant through other investigative
methods and has made undercover and controlled purchases of marijuana and
cocaine from McCartney and Kilbarger to support these claims. Affiant submits
that the mention[ed] addresses are presently being used to facilitate drug
trafficking or are being used to conceal narcotics, contraband, or assets obtained
from the sale of narcotics from authorities and requests permission from the court
to search these mentioned areas for evidence of the crimes listed.
7
(Id. at ¶18).2
{¶ 14} In our view, Stiegelmeyer’s affidavit provided the issuing judge with a
substantial basis for finding probable cause to believe drugs would be found inside Kilbarger’s
home. Beginning in October 2009, the CI informed Stiegelmeyer that McCartney and Kilbarger
were large-scale drug traffickers. Thereafter, in October 2009 and April 2010, the CI purchased
marijuana and cocaine from McCartney. In May 2010, approximately one month before the
warrant was obtained, the CI advised Stiegelmeyer that McCartney and Kilbarger “use”
Kilbarger’s residence at 508 West Sherry Street to store drugs. Also in May 2010, again
approximately one month before the warrant was obtained, agents saw Kilbarger hand
McCartney a white paper bag that was found to contain two ounces of cocaine. In June 2010,
the same month the warrant was obtained, agents watched as McCartney and Kilbarger engaged
in a pattern of travel that Stiegelmeyer reasonably inferred was indicative of drugs being
transported from Kilbarger’s home for sale by McCartney to the CI and drug money subsequently
being deposited at Kilbarger’s home.
{¶ 15} . Based on our review of Stiegelmeyer’s affidavit, we believe it adequately
established the CI’s veracity and basis of knowledge. The affidavit also reflected that
Stiegelmeyer and other agents witnessed known and apparent drug activity involving both
McCartney and Kilbarger shortly before the warrant was obtained. As for the presence of drugs in
Kilbarger’s home, the CI stated that McCartney and Kilbarger were large-scale drug traffickers
2
For purposes of our analysis, we have focused primarily on the portions of Stiegelmeyer’s affidavit relevant to drug activity
involving Kilbarger and the presence of drugs at his residence. Because the affidavit was used to obtain search warrants for multiple locations,
it also contains information about other addresses and vehicles where Stiegelmeyer believed drugs would be found. We have not discussed
those averments, however, given that Kilbarger is challenging only the warrant to search his home.
8
and that he previously had purchased drugs from 508 West Sherry Street. Significantly, he
identified 508 West Sherry Street in May 2010 as a location McCartney and Kilbarger “use” to
store drugs. Moreover, Kilbarger’s travel pattern on the day of the June 2010 controlled buy
supports a reasonable inference that he obtained cocaine from 508 West Sherry Street for
McCartney to sell to the CI. Viewed together, the foregoing facts reasonably support a finding
that probable cause to search 508 West Sherry Street existed on June 21, 2010, when
Stiegelmeyer sought a warrant, and that the information in the affidavit regarding Kilbarger’s
residence was not impermissibly stale. At a minimum, the issuing judge had a “substantial basis”
for finding a “fair probability” that drugs would be found inside 508 West Sherry Street. George,
45 Ohio St.3d at 330. Accordingly, the second assignment of error is overruled.
{¶ 16} We turn now to the first assignment of error. There Kilbarger contends the trial
court erred in denying his motion to suppress the evidence against him based on a Franks
violation. He advances three arguments in support, First, he claims the trial court should have
granted him a “full hearing” on the Franks issue. Second, he asserts that he presented enough
evidence at the “initial hearing” to establish a Franks violation even without a full hearing. Third,
he maintains that the trial court erred in denying a motion for reconsideration he filed after the
hearing.
{¶ 17} “Pursuant to Franks, a search violates the Fourth Amendment’s prohibition on
unreasonable searches if it is conducted pursuant to a warrant that is based upon an affidavit
containing one or more material misrepresentations, and these misrepresentations were made
knowingly or in reckless disregard for the truth.” (Citations omitted.) State v. Miser, 2d Dist.
Montgomery No. 25105,

2013-Ohio-1583

, ¶12. “‘Reckless disregard’ means that the affiant had
9
serious doubts of an allegation’s truth. * * * Omissions count as false statements if ‘designed to
mislead, or * * * made in reckless disregard of whether they would mislead, the magistrate.’”
(Citations omitted.)

 “‘[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.’” (Citation omitted.) State v. Blaylock, 2d Dist.
Montgomery No. 24475,

2011-Ohio-4865

, ¶15.
{¶ 18} “[W]here the defendant makes a substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disregard for the truth, was included by
the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding
of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s
request.” Franks,

438 U.S. at 155-156

. “In the event that at that
hearing the allegation of perjury or reckless disregard is established by the defendant by a
preponderance of the evidence, and, with the affidavit’s false material set to one side, the
affidavit’s remaining content is insufficient to establish probable cause, the search warrant must
be voided and the fruits of the search excluded to the same extent as if probable cause was
lacking on the face of the affidavit.”

Id. at 156

.
{¶ 19} In the present case, the trial court held a lengthy hearing on the Franks issue
raised in Kilbarger’s suppression motion.3 The sole witness was agent Stiegelmeyer, the affiant.
Defense counsel questioned Stiegelmeyer in detail about the content of his search-warrant
affidavit. On appeal, Kilbarger characterizes this hearing as an “initial hearing.” He asserts that
3
The hearing transcript is 125 pages long.
10
he made a substantial enough showing of material misrepresentations, false statements, and
omissions during that hearing to warrant a “full hearing.”
{¶ 20} Having reviewed the record, we are unsure how a subsequent “full hearing”
would have differed from the “initial hearing” or what additional evidence could have been
offered. We recognize, however, that the trial court itself treated the hearing it held as an initial
one, the stated purpose of which was to determine the need for “a full-blown Franks hearing[.]”
(Franks Tr. at 104). As set forth above, the trial court ruled against Kilbarger at the conclusion of
the December 2, 2011 hearing, holding that he had “failed to make a preliminary showing by a
preponderance of the evidence that the affiant, with an intent to mislead, either excluded crucial
information from the affidavit or provided false or misleading information in the affidavit.” (Id.
at 109). Therefore, it held no additional hearing.
{¶ 21} On appeal, Kilbarger first contends the trial court applied the wrong standard
when denying him a “full hearing.” He cites Franks for the proposition that a “full hearing” is
required if a defendant makes a “substantial preliminary showing” of a Franks violation based on
more than conclusory allegations or a desire to cross examine. Kilbarger appears to claim the trial
court erred in applying a higher, preponderance-of-the-evidence standard and in omitting the
“reckless disregard” portion of the test set forth in Franks.
{¶ 22} Upon review, we find no reversible error. Despite the distinction Kilbarger draws
between “initial” and “full” Franks hearings, in our view, after a substantial preliminary showing
has been made, the U.S. Supreme Court’s opinion in Franks contemplates one evidentiary
hearing:
* * * To mandate an evidentiary hearing, the challenger’s attack must be
11
more than conclusory and must be supported by more than a mere desire to
cross-examine. There must be allegations of deliberate falsehood or of reckless
disregard for the truth, and those allegations must be accompanied by an offer of
proof. They should point out specifically the portion of the warrant affidavit that
is claimed to be false; and they should be accompanied by a statement of
supporting reasons. Affidavits or sworn or otherwise reliable statements of
witnesses should be furnished, or their absence satisfactorily explained.
Allegations of negligence or innocent mistake are insufficient. The deliberate
falsity or reckless disregard whose impeachment is permitted today is only that of
the affiant, not of any nongovernmental informant. Finally, if these requirements
are met, and if, when material that is the subject of the alleged falsity or reckless
disregard is set to one side, there remains sufficient content in the warrant
affidavit to support a finding of probable cause, no hearing is required. On the
other hand, if the remaining content is insufficient, the defendant is entitled, under
the Fourth and Fourteenth Amendments, to his hearing.* * *
Franks,

438 U.S. at 171-172

.
{¶ 23} We find nothing in Franks that obligates a trial court to hold two evidentiary
hearings, an “initial” one and a “full” one, particularly where, as here, the affiant testified in
detail and was subjected to extensive cross examination. In any event, the trial court and the
parties contemplated a subsequent “full-blown Franks hearing” if Kilbarger met the applicable
legal standard. Although the trial court only recited part of the standard for obtaining a hearing
under Franks, we see no basis to reverse. When reviewing a ruling on a suppression motion, we
12
apply the applicable legal standard without deference to the trial court. State v. Choice, 2d Dist.
Montgomery No. 25131,

2013-Ohio-2013

, ¶45 (recognizing that an appellate court must
determine “as a matter of law and without deference to the trial court’s legal conclusion, whether
the applicable legal standard is satisfied”). Here our de novo application of the Franks standard
for obtaining a hearing will cure any alleged defect in the application of that standard below.4
{¶ 24} In our view, Kilbarger failed to make “a substantial preliminary showing” that a
false statement (or omission), necessary to a finding of probable cause, was knowingly,
intentionally, or recklessly included in (or omitted from) Stiegelmeyer’s affidavit. See Franks at
155-156. Therefore, even if the December 2, 2011 hearing was only a preliminary one, the trial
court did not err in refusing to hold a “full-blown Franks hearing.”
{¶ 25} On appeal, Kilbarger alleges nine instances of false or misleading statements in
Stiegelmeyer’s affidavit. First, he challenges an averment in paragraph two that a reliable and
credible CI informed Stiegelmeyer in October 2009 about drug-trafficking activity involving
McCartney and Kilbarger. During the December 2, 2011 hearing, Stiegelmeyer conceded that
this information about Kilbarger being involved in drug trafficking had not been verified in
October or November 2009. (Franks Tr. at 67-69). But paragraph two does not indicate
otherwise. It says that the CI told Stiegelmeyer about the drug-trafficking activity in October
2009, not that Stiegelmeyer verified it then.
4
In U.S. v. Fowler,

535 F.3d 408

 (6th Cir.2008), the Sixth Circuit Court of Appeals noted that “the standard of review with respect
to the denial of a Franks hearing is unsettled.”

Id. at 415, fn. 2

. “Some circuits employ a clear error standard, while others review the denial de
novo.”

 Where the “more exacting [de novo ] standard of review is satisfied,” an appellate court need not resolve the dispute.

We find
that to be the case here. As will be explained more fully above, applying de novo review and adopting the legal standard articulated in Franks,
we conclude that Kilbarger failed to make the “substantial preliminary showing” required to obtain an evidentiary hearing on the alleged
misrepresentations under Franks.
13
{¶ 26} Second, Kilbarger challenges an averment in paragraph three that the CI
informed Stiegelmeyer in October 2009 that McCartney and Kilbarger were large cocaine and
marijuana traffickers. Kilbarger stresses Stiegelmeyer’s admission during the hearing that he had
not verified Kilbarger’s status as a drug trafficker in October 2009. Again, however, paragraph
three does not say Stiegelmeyer verified this information in October 2009. It says only that he
received it.
{¶ 27} Third, Kilbarger challenges an averment in paragraph three that the CI told
Stiegelmeyer in October 2009 that McCartney was the leader of the drug operation and Kilbarger
was a distributor. Kilbarger claims this statement is false because he did not become part of
Stiegelmeyer’s “investigation” until May 2010. We disagree. During the hearing, Stiegelmeyer
testified that Kilbarger’s name did not appear in any of the agents’ investigative reports until May
2010. (Franks Tr. at 82-83). This testimony does not conflict with the averment in paragraph
three, which was also consistent with Stiegelmeyer’s in-court testimony, about what the CI told
Stiegelmeyer in October 2009.
{¶ 28} Fourth, Kilbarger challenges an averment in paragraph seven about the CI telling
Stiegelmeyer in May 2010 that Kilbarger’s residence was used to store narcotics. Kilbarger
characterizes this statement as false because it does not specify when narcotics were stored there
or when the CI visited. But omitting when the CI visited Kilbarger’s home or when drugs were
stored there did not make the averment false. It only made it less specific and, perhaps, less
useful than it otherwise might have been.
{¶ 29} Fifth, Kilbarger challenges an averment in paragraph seven that the CI had been
to 508 West Sherry Street “in the past to purchase narcotics[.]” Kilbarger claims this statement is
14
false or misleading because Stiegelmeyer admitted during the hearing that he never asked when
the CI last visited. Once again, however, the fact that the affidavit did not mention when the CI
purchased drugs at Kilbarger’s home did not make it false or misleading. It made the affidavit
non-specific and, to that extent, less helpful than it otherwise might have been.
{¶ 30} Sixth, Kilbarger challenges an averment in paragraph eight about agents seeing
him hand McCartney a white paper bag containing two ounces of cocaine. Kilbarger claims this
statement is false because the agents did not know what the bag contained when he handed it to
McCartney. This argument lacks merit. Agents watched Kilbarger hand McCartney a white
McDonald’s bag. Shortly thereafter, they then watched McCartney hand a white McDonald’s bag
to the CI. The agents then discovered that the bag contained cocaine. It is, of course, possible that
the bag did not contain cocaine when Kilbarger handed it to McCartney. For purposes of a
probable-cause affidavit, however, we believe Stiegelmeyer reasonably inferred that it did.
{¶ 31} Kilbarger’s seventh and eighth arguments challenge averments regarding GPS
tracking devices in vehicles he and McCartney drove. Kilbarger disputes Stiegelmeyer’s claim in
paragraphs nine and ten of his affidavit that the GPS tracking devices recorded activity
suggestive of drug-trafficking activity. Although we are not persuaded that anything in
paragraphs nine and ten violated Franks, Kilbarger’s argument about the tracking-device
averments fails to demonstrate a right to a Franks hearing for a more fundamental reason.
Specifically, in our analysis above finding that Stiegelmeyer’s affidavit established probable
cause, we neither cited nor relied on the averments in paragraphs nine and ten about GPS
tracking devices. Because those averments played no role in our probable-cause determination,
their inclusion in the affidavit cannot warrant a Franks hearing. See Franks,

438 U.S. at 171-172

,
15