State v. Henderson

[Cite as State v. Henderson, 2019-Ohio-1974.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28880
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
NATHAN L. HENDERSON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR-2017-02-0675-B
DECISION AND JOURNAL ENTRY
Dated: May 22, 2019
TEODOSIO, Presiding Judge.
{¶1} Appellant, Nathan L. Henderson, appeals from his conviction for illegal
cultivation of marijuana in the Summit County Court of Common Pleas. This Court reverses and
remands.
I.
{¶2} According to Detective Daniel Quior of both the Cuyahoga Falls Police
Department and the Summit County Drug Unit, he received information that Mr. Henderson
drove a red minivan and was cultivating marijuana at 1262 Welsh Avenue. The detective
commenced an investigation, conducted surveillance of the residence, and twice saw Mr.
Henderson there: once as he arrived in a red minivan and entered the house without knocking,
and once in the back driveway area of the residence. He investigated Mr. Henderson’s criminal
history and discovered two arrests for trafficking drugs—one for marijuana and one for
2
cocaine—as well as convictions for drug possession. He also observed that no trash was ever
placed out front for pickup, which he testified is an indicator of a marijuana grow operation.
{¶3} According to the detective, based on his training and experience, indoor
marijuana grow operations require a high level of electricity, so he subpoenaed the electricity-
usage records from 1262 Welsh Avenue as well as three comparable houses in the area. He
reviewed the month-to-month data over a one-year period. He was looking for a “spike” in
kilowatts per hour (“KPH”) because marijuana grows occur in periods, including “down periods”
for harvesting. The detective saw that electricity usage at 1262 Welsh Avenue spiked to an
“extremely high” number in May of 2016. To him, it did not indicate air conditioners or space
heaters, but a much higher power consumption instead. Detective Quior then secured a search
warrant for thermal imaging of the residence. He accompanied two pilots and Detective Jerry
Antonucci of the Ohio State Highway Patrol Aviation Unit in a helicopter for a thermal flyover
of 1262 Welsh Avenue and the surrounding neighborhood. Detective Quior then secured a
search warrant for the residence located at 1262 Welsh Avenue. A search of the residence
revealed a marijuana grow operation in the basement.
{¶4} Mr. Henderson and his co-defendant (“S.H.-H.”) were both charged with illegal
cultivation of marijuana, a felony of the second degree, and possession of marijuana, a felony of
the third degree. S.H.-H. was also charged with aggravated possession of drugs, a felony of the
fifth degree.
{¶5} Mr. Henderson and S.H.-H. filed a joint motion to suppress, which the trial court
denied following a hearing. Mr. Henderson then pled no contest to an amended charge of illegal
cultivation of marijuana, a felony of the third degree, and the remaining charge was dismissed.
The trial court found him guilty and sentenced him to 24 months of community control.
3
{¶6} Mr. Henderson now appeals from his conviction and raises one assignment of
error for this Court’s review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN HOLDING, BASED ON THE TOTALITY OF
THE CIRCUMSTANCES, THERE WAS PROBABLE CAUSE FOR
ISSUANCE OF THE SEARCH WARRANT FOR APPELLANT’S RESIDENCE
{¶7} Mr. Henderson makes a multitude of arguments under his assignment of error.
He argues that the trial court erred in denying his motion to suppress because: (1) Detective
Quior impermissibly drew an inference in his search-warrant affidavit for thermal imaging—by
averring that the electricity usage at 1262 Welsh Avenue was “significantly higher” than
comparable properties—thus usurping the signing judge’s authority to draw such inferences; (2)
Detective Quior misrepresented the source of his information as being anonymous when the
source was actually a known informant; (3) the thermal imaging search-warrant affidavit did not
establish probable cause, and the information provided by the informant should have been
reviewed under the standard for anonymous sources; (4) Detective Quior impermissibly drew a
false inference in his affidavit supporting a search of the house at 1262 Welsh Avenue by
inaccurately stating that the thermal imaging scan “revealed a strong heat signature emitting
from the basement area of the address that was not consistent with the surrounding houses”; and
(5) the search-warrant affidavit for the house did not establish probable cause.
{¶8} Mr. Henderson’s stated assignment of error initially gives us pause as it only
challenges the determination that sufficient probable cause existed for the second search
warrant—for a search of the residence at 1262 Welsh Avenue—but it does not state with
specificity any alleged errors regarding the thermal imaging search warrant or its supporting
4
affidavit, the classification of the informant as anonymous or known, or any impermissible
inferences made by the detective in either affidavit. This Court has consistently held that an
appellant’s captioned assignment of error provides us with a roadmap on appeal and directs our
analysis. E.g., State v. Martynowski, 9th Dist. Lorain No. 17CA011078, 2017-Ohio-9299, ¶ 18.
Consequently, “[t]his Court will not address arguments that fall outside the scope of an
appellant’s captioned assignment of error.” Id. While we could conceivably decline to address
several of Mr. Henderson’s arguments on this basis alone—save his ultimate challenge to the
determination of sufficient probable cause for the warrant to search the house—we will instead
liberally construe his statement referencing the “totality of the circumstances” as challenging the
probable cause for the warrant to search the house as well as incorporating his additional
arguments as to the thermal imaging search warrant and affidavit, as the results of the thermal
imaging scan were referenced in the affidavit supporting the warrant to search the house.
{¶9} Mr. Henderson pled no contest in this case, and a plea of no contest does not
preclude a defendant from asserting on appeal that the trial court erred in ruling on a pretrial
motion to suppress evidence. Crim.R. 12(I). The appropriate standard of review is as follows:
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. Consequently, an appellate court must
accept the trial court’s findings of fact if they are supported by competent,
credible evidence. 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.
(Citations omitted.) State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8.
“Significantly Higher” Electricity Usage
{¶10} Mr. Henderson argues that Detective Quior, by concluding in his thermal imaging
search-warrant affidavit that the electricity usage at 1262 Welsh Avenue was “significantly
5
higher” than at comparable properties, usurped the issuing judge’s authority to draw such
inferences.
{¶11} “[A]ffiants may make reasonable inferences within search-warrant affidavits.”
State v. Castagnola, 145 Ohio St. 3d 1, 2015-Ohio-1565, ¶ 39. However, to permit an
independent review, the facts upon which those inferences are based must be disclosed and the
issuing judge must be afforded the opportunity to test any significant inferences drawn by the
affiant. Id. at ¶ 40. The issuing judge cannot be viewed as neutral and detached if she issues a
search warrant that is unknowingly based on the police officer’s conclusions. Id. at ¶ 41. While
search-warrant affidavits will inevitably include undisclosed inferences, there is a line between
permissible police interpretation and usurpation of the judge’s function. Id. at ¶ 49.
{¶12} In Castagnola, the Supreme Court of Ohio adopted the test outlined in People v.
Caffott for reviewing courts confronted with allegations that an inference made by an affiant was
presented as an empirical fact in an affidavit, thus usurping the issuing judge’s inference-drawing
authority. Id. See also People v. Caffott, 105 Cal. App. 3d 775 (Cal.App.1980). Where an
undisclosed inference is made in an affidavit, the reviewing court should:
[D]etermine whether the hidden inference was so significant as to cross the line
between permissible interpretation and usurpation. * * * A hidden inference
should be deemed significant if it can be fairly concluded that it had a substantial
bearing on the [issuing judge’s] determination of probable cause in each of two
respects:
(1) Relevance: The more directly relevant the inference is to the [issuing judge’s]
inquiry, the more substantial its bearing and the more significant it will be. * * *
(2) Complexity: The more complex and attenuated the logical process by which a
relevant conclusion is reached, the more important it is that the [issuing judge]
receive an opportunity to test the inference for validity as part of [her] neutral and
detached function. Conversely, an inference so straightforward, and so patently
within the affiant’s area of expertise, as to be a matter of “routine interpretation”
for the affiant is probably not so significant as to require the [issuing judge’s]
review even though the conclusion thus reached is highly relevant.
6
Id., quoting Caffott at 783. If the inference is significant, then the reviewing court should
examine the affiant’s animus. Id. at ¶ 50. “If the affiant acted intentionally or with conscious
indifference, then the warrant should be invalidated and the evidence suppressed.” Id.
“However, if the affiant acted negligently, then the misstatement should be removed, the omitted
underlying facts added, and the affidavit reassessed.” Id.
{¶13} In the case sub judice, the thermal imaging search-warrant affidavit includes the
following statement:
AFFIANT knows from obtaining First Energy power consumption records by
subpoena on January 19[], 2017[,] that the electrical power consumption at 1262
Welsh Avenue, Akron[,] Ohio is significantly higher than that of similar[-]sized
residences by comparing the consumption.
(Emphasis added.). No additional information or data regarding the properties or their electricity
usage is included within the affidavit.
{¶14} When first considering the relevance of the detective’s conclusion that the
electricity usage at 1262 Welsh Avenue was “significantly higher” than at comparable
properties, we note that courts have generally determined electricity usage to be relevant in
determining probable cause. See State v. Stock, 8th Dist. Cuyahoga No. 105996, 2018-Ohio-
3496, ¶ 31; State v. Adkins, 12th Dist. Butler Nos. CA2014-02-036 and CA2014-06-141, 2015-
Ohio-1698, ¶ 67; State v. Kosla, 10th Dist. Franklin Nos. 13AP-514, 13AP-517, 13AP-515, and
13AP-516, 2014-Ohio-1381, ¶ 37; State v. Leibold, 2d Dist. Montgomery No. 25124, 2013-
Ohio-1371, ¶ 24. We agree with our sister district courts and conclude that Detective Quior’s
inference was relevant to the determination of probable cause.
{¶15} We must next consider the complexity of the logical process by which Detective
Quior’s conclusion was reached. The detective reviewed and compared the month-to-month
7
electricity-usage data from 1262 Welsh Avenue and three comparable houses in the area over a
one-year period. He testified at the suppression hearing that he was looking for a “spike” in
KPH because marijuana grows occur in periods, including “down periods” for harvesting. The
affidavit includes Detective Quior’s knowledge, training, and experience in recognizing the
various indicators of indoor marijuana grow operations, including higher electricity usage
resulting from the use of grow lights, power supply transformers, and ventilation equipment.
Under the facts of this particular case, and in consideration of Detective Quior’s knowledge,
training, and experience with drug-related investigations, as well as the simplistic nature of
comparing numbers to determine if any are much higher than others, we conclude that his
“significantly higher” conclusion was so straightforward, and so patently within his area of
expertise, as to be a matter of “routine interpretation” for him. See Castagnola at ¶ 49. The
detective’s review and comparison of the data was not so complex and attenuated as to require
some type of additional, comprehensive investigation.
{¶16} Thus, even though Detective Quior’s “significantly higher” conclusion is certainly
relevant to the determination of probable cause, it is not so significant as to require the issuing
judge’s review of the actual, underlying electricity-usage data. See id. We therefore need not
examine the detective’s animus and, accordingly, conclude that the inference was reasonable
under the circumstances and did not cross line between permissible police interpretation and
usurpation of the issuing judge’s function.
Veracity of the Thermal Imaging Search-Warrant Affidavit
{¶17} Mr. Henderson also challenges the veracity of the thermal imaging search-warrant
affidavit by arguing that Detective Quior misrepresented the source of information as being
anonymous when the source was actually a known informant.
8
{¶18} While Mr. Henderson’s argument initially challenges the thermal imaging search-
warrant affidavit, it oddly concludes with a sentence challenging the “issuance of the subpoena
to Ohio Edison for electric usage data and comparison.” However, the electricity-usage data was
subpoenaed prior to the detective’s preparation of the thermal imaging search-warrant affidavit
and is referenced within that document. Moreover, “individuals do not have a reasonable
expectation of privacy in their electricity usage records, and * * * the police do not need
probable cause in order to obtain the records.” Leibold, 2013-Ohio-1371, at ¶ 38, citing State v.
Coleman, 2d Dist. Montgomery No. 25248, 2012-Ohio-6042, ¶ 24, citing United States v.
McIntyre, 646 F.3d 1107 (8th Cir.2011). See also United States v. Thomas, 662 Fed.Appx. 391,
397 (6th Cir.2016) (“As with banking and phone records, there is no Fourth Amendment privacy
interest in the number of kilowatt hours one uses”). We thus presume Mr. Henderson’s
challenge to the subpoena for electricity-usage data at the conclusion of his argument was a
typographical error, and we will address his argument only as it applies to the thermal imaging
search-warrant affidavit.
{¶19} We respectfully disagree with the dissent’s suggestion that Mr. Henderson’s
argument regarding the anonymity of the tip only challenged the sufficiency of the subpoena of
electricity-usage data, and that this Court is now sua sponte raising the argument as it relates to
the thermal imaging search-warrant affidavit. Although Mr. Henderson challenged the subpoena
of electricity-usage data in his motion to suppress, at the suppression hearing he further
challenged the anonymity of the tip as it related to the search-warrant affidavits. He has since
narrowed down his arguments on appeal and focused on the search warrants and their supporting
affidavits. In his merit brief, he first challenges the “affidavit in support of a warrant to conduct
a thermal imaging scan” and specifically states, “Det. Quior clearly misrepresented the nature of
9
the information source in his warrant affidavit * * *.” (Emphasis added.). Thus, his later
reference to the subpoena for electricity-usage data in that same section appears to have been
made by mistake, presumably because a few paragraphs of his motion to suppress have been
copied word for word and now appear in his appellate brief. When his argument on appeal is
read as a whole, however, the fact that he is challenging the anonymity of the tip as it relates to
the search-warrant affidavits, and not the electricity-usage subpoena, becomes clear.
{¶20} Affidavits supporting search warrants enjoy a presumption of validity. Franks v.
Delaware, 438 U.S. 154, 171 (1978). In order to successfully challenge the veracity of a search-
warrant affidavit, “a defendant must show by a preponderance of the evidence that the affiant
made a false statement, either ‘intentionally, or with reckless disregard for the truth.’” State v.
Perry, 9th Dist. Lorain No. 15CA010889, 2017-Ohio-1185, ¶ 12, quoting State v. McKnight, 107
Ohio St. 3d 101, 2005-Ohio-6046, ¶ 31, quoting State v. Waddy, 63 Ohio St. 3d 424, 441 (1992),
quoting Franks at 155-156. “The term ‘reckless disregard’ means that ‘the affiant had serious
doubts about the truth of an allegation.’” Id., quoting McKnight at ¶ 31, quoting United States v.
Williams, 737 F.2d 594, 602 (7th Cir.1984).
{¶21} Here, the thermal imaging search-warrant affidavit plainly refers to an
“anonymous complaint” regarding alleged marijuana cultivation at 1262 Welsh Avenue. During
his testimony at the suppression hearing, Detective Quior clarified the reason he listed the source
as anonymous. He testified that the source of information was a known informant he had
previously used in Cuyahoga Falls who “wish[ed] to remain anonymous.”
{¶22} Although labeling a known informant as anonymous in an affidavit supporting a
search warrant is an ill-advised practice, Mr. Henderson still bears the burden of showing not
only that the statement is false, but also that it was made intentionally or with a reckless
10
disregard for the truth. See Perry at ¶ 12. A review of the record reveals no evidence that
Detective Quior misidentified the nature of the source intentionally or with a reckless disregard
for the truth. Instead, his testimony demonstrated that he actually believed “anonymous” was a
true and accurate classification of the informant. There is no indication that the detective was
being intentionally deceptive or reckless when listing the informant as anonymous. Under these
facts, we cannot say that the detective intentionally made a false statement that undermined the
veracity of the search-warrant affidavit.
{¶23} Regardless, we fail to see how Mr. Henderson suffered any prejudice here, since,
under Ohio law, anonymous informants are less reliable than known informants. See Maumee v.
Weisner, 87 Ohio St. 3d 295, 300-301 (1999) (discussing informant reliability). In other words,
identifying the source as a known informant would have strengthened the detective’s search-
warrant affidavit, and any error in listing the source as anonymous would have benefited Mr.
Henderson, not the State. As we will address in detail below, Mr. Henderson acknowledges that
benefit as he argues the trial court erred by reviewing the information under the standard for
known informants, rather than the standard for anonymous informants. Therefore, we find no
merit in Mr. Henderson’s challenge to the veracity of the search-warrant affidavit for thermal
imaging.
Validity of the Thermal Imaging Search-Warrant and Supporting Affidavit
{¶24} Mr. Henderson also challenges the validity of the thermal imaging search-warrant
by arguing that the trial court erred in reviewing the information received from Detective Quior’s
source under the standard for known informants, rather than under the appropriate standard for
anonymous sources.
11
{¶25} “Courts have generally recognized three categories of informants: (1) the
identified citizen informant, (2) the known informant, i.e., someone from the criminal world who
has a history of providing reliable tips, and (3) the anonymous informant.” State v. Jordan, 104
Ohio St. 3d 21, 2004-Ohio-6085, ¶ 36, citing Maumee at 300. “A tip from an anonymous
informant, standing alone, is generally insufficient to support reasonable suspicion of criminal
activity, because it lacks the necessary indicia of reliability.” Id. Anonymous tips require
suitable corroboration demonstrating sufficient indicia of reliability to provide reasonable
suspicion because, unlike a tip from a known informant whose reputation can be assessed and
who can be held responsible if his allegations turn out to be fabricated, an anonymous tip alone
seldom demonstrates the informant’s basis of knowledge or veracity. Id.
{¶26} As stated above, Detective Quior listed his source as being anonymous in the
thermal imaging search-warrant affidavit, but later testified at the suppression hearing that the
source was actually a known informant. In its order denying the motion to suppress, the trial
court characterized the discrepancy between the detective’s testimony and the language utilized
in the affidavit as being “simply a semantical error” and “simply an oversight[,]” and ultimately
upheld the thermal imaging search warrant as being supported by sufficient facts to support a
finding of probable cause.
{¶27} We recognize that search-warrant affidavits “are normally drafted by non[-
]lawyers in the midst and haste of a criminal investigation” and therefore “must be tested and
interpreted by magistrates and courts in a commonsense and realistic fashion.” United States v.
Ventresca, 380 U.S. 102, 108 (1965). Although true that the detective’s affidavit “should not be
judged as an entry in an essay contest,” it nonetheless “must be judged by the facts it contains.”
United States v. Harris, 403 U.S. 573, 579 (1971). “It is elementary that in passing on the
12
validity of a warrant, the reviewing court may consider only information brought to the [issuing
judge’s] attention.” (Emphasis sic.) Aguilar v. Texas, 378 U.S. 108, 109 (1964), fn. 1.
{¶28} Here, the source is described in the affidavit simply as an “anonymous complaint”
and no additional information is included to clarify that the source is actually a known informant
who wishes to remain anonymous. There is also no evidence of any oral testimony that was
presented to the issuing judge in conjunction with the affidavit. Moreover, at the time the search
warrant was signed, the issuing judge was certainly not privy to the detective’s future
suppression hearing testimony clarifying his reasoning and decision to list the source as
anonymous in the affidavit. The only information before the issuing judge was that the source
was anonymous, so the information must be reviewed under the standard for anonymous sources.
Once again, anonymous sources require suitable corroboration demonstrating sufficient indicia
of reliability to provide reasonable suspicion. Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085, at ¶
36.
{¶29} We next turn to the probable cause determination for the search warrant for
thermal imaging. “To determine if an affidavit in support of a search is supported by probable
cause, a judge must ‘make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him [or her], 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. Myers, 9th Dist. Summit No.
27576, 2015-Ohio-2135, ¶ 10, quoting Illinois v. Gates, 462 U.S. 213, 238-239 (1983). “Courts
should give ‘great deference’ to the determination of probable cause made by the judge or
magistrate who issued the search warrant.” State v. Jackson, 9th Dist. Summit No. 28691, 2018-
Ohio-1285, ¶ 16, quoting Myers at ¶ 10. The applicable standard of review is as follows:
13
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, * * * doubtful or
marginal cases in this area should be resolved in favor of upholding the warrant.
Myers at ¶ 10, quoting State v. George, 45 Ohio St. 3d 325 (1989), paragraph two of the syllabus.
{¶30} “‘Probable cause means the existence of evidence, less than the evidence that
would justify condemnation, such as proof beyond a reasonable doubt or by a preponderance; in
other words, probable cause is the existence of circumstances that warrant suspicion.’” State v.
Tejada, 9th Dist. Summit No. 20947, 2002-Ohio-5777, ¶ 8, quoting State v. Young, 146 Ohio
App.3d 245, 254 (11th Dist.2001). “Under that definition, while a prima facie showing of
criminal activity is not required, we must instead look for the probability of criminal activity.”
Jackson at ¶ 17, citing Myers at ¶ 11. “When conducting a review of the probable cause behind a
search warrant, we are mindful that we are ‘limited to the four corners of the search warrant
affidavit.’” Jackson at ¶ 17, quoting Myers at ¶ 11, quoting State v. Russell, 9th Dist. Summit
No. 26819, 2013-Ohio-4895, ¶ 9.
{¶31} The thermal imaging search-warrant affidavit sets forth a number of facts,
including: (1) An “anonymous complaint” was received regarding marijuana cultivation at 1262
Welsh Avenue; (2) subpoenaed electricity-usage records show that power consumption at 1262
Welsh Avenue is significantly higher than at comparable residences; (3) indoor marijuana grow
operations—based on the affiant’s knowledge, training, and experience—produce an elevated
amount of heat commonly radiated from within the structure that is measurable and
documentable by those trained and certified in the use of thermal imaging equipment; (4) the
14
Ohio State Highway Patrol Aviation Section is trained and certified in the use of thermal
imaging equipment during flyovers, and a video will be recorded and produced; and (5) there is
reason—based on the affiant’s knowledge, training, and experience—to conduct a thermal
imaging flyover of the residence to further the investigation and protect the public. The trial
court found that the search warrant for thermal imaging was supported by sufficient facts to
establish probable cause.
{¶32} In properly limiting our review to the four corners of the affidavit, we determine
that the issuing judge did not have a substantial basis for concluding that probable cause existed
to issue a search warrant for thermal imaging in this case. The affidavit contains nothing to
connect any possible criminal activity to the residence or anyone within it, only providing an
anonymous source’s conclusion that 1262 Welsh Avenue contains an indoor marijuana grow
operation. Wholly conclusory statements do not provide an issuing judge with a substantial basis
for determining the existence of probable cause, and instead “provid[e] virtually no basis at all
for making a judgment regarding probable cause.” Gates, 462 U.S. at 239. Sufficient
information must be presented to the issuing judge to allow her to determine probable cause, and
her action cannot be a mere ratification of the bare conclusions of others. Id. The affidavit here
is devoid of any information regarding the informant’s veracity, reliability, or basis of
knowledge. See id. at 230 (stating an informant’s veracity, reliability, and basis of knowledge
are all highly relevant in determining probable cause). See also State v. Richardson, 9th Dist.
Summit No. 24636, 2009-Ohio-5678, ¶ 13-15. Nothing in the affidavit identifies who is
allegedly cultivating marijuana in the house or indicates if that person has a criminal record.
Moreover, even when considering the allegation of electricity usage as significantly higher at
1262 Welsh Avenue than at some comparable properties, no reference to any additional,
15
independent police corroboration of the anonymous tip is included in the affidavit. See Jordan,
104 Ohio St. 3d 21, 2004-Ohio-6085, at ¶ 36 (stating anonymous sources require suitable
corroboration demonstrating sufficient indicia of reliability to provide reasonable suspicion). A
conclusory, uncorroborated statement from an anonymous source whose veracity, reliability, and
basis of knowledge are completely unknown, combined with a statement about high electricity-
usage at the house, without more, cannot provide a judge with a substantial basis for concluding
that probable cause existed to issue a search warrant. See Leibold, 2013-Ohio-1371, at ¶ 33
(“We hesitate to approve scenarios which would permit police to obtain a warrant based solely
on (legally) random inspection of electricity usage records, even for a residence which had been
the subject of a prior search.”).
{¶33} Therefore, even while giving great deference to the issuing judge’s determination
of probable cause, and while recognizing that doubtful or marginal cases should be resolved in
favor of upholding the warrant, we can only conclude that this particular “bare bones” affidavit
supporting the search warrant for thermal imaging does not include sufficient information to
support a determination that probable cause existed.
{¶34} Our determination that the thermal imaging search-warrant affidavit was
insufficient to establish probable cause leads us to next determine whether the evidence obtained
during execution of the thermal imaging search warrant still should not have been suppressed
under the “good faith exception” established in United States v. Leon, 468 U.S. 897 (1984).
Pursuant to Leon’s “good faith exception,” evidence seized under the authority of
a warrant that a court later finds was not supported by probable cause will not be
suppressed if it can be demonstrated that the officer reasonably relied on the
decision of a detached and neutral magistrate. Id. at 920-922. “At the heart of the
‘good faith[] exception[’] is the fact that the mistake that invalidated the warrant
was solely on the part of the judge who issued the warrant. The police officers,
on the other hand, merely executed a warrant they thought was valid. The
rationale for not excluding evidence seized in such a situation focuses on the
16
inability of the exclusionary rule to fulfill its purpose of deterring police
negligence and misconduct.” State v. Simon, 119 Ohio App. 3d 484, 487 (1997).
However, suppression will still be the appropriate remedy if the affidavit
presented to the signing judge in support of the warrant is “‘so lacking in indicia
of probable cause as to render official belief in its existence entirely
unreasonable.’” George, 45 Ohio St. 3d at 331, quoting Leon, 468 U.S. at 923.
Richardson at ¶ 17.
{¶35} As discussed above, Detective Quior’s affidavit failed to contain sufficient facts
for the issuing judge to conclude that probable cause existed to conduct a thermal imaging scan
of 1262 Welsh Avenue. Due to the wide array of pertinent information that is simply not
included or not addressed in the affidavit, we can only conclude that the affidavit is so lacking in
indicia of probable cause as to render official belief in its existence entirely unreasonable, and
the good faith exception to the exclusionary rule is therefore inapplicable. See id.
{¶36} Accordingly, because the trial court’s findings of fact are not supported by
competent, credible evidence, we conclude that the trial court erred in upholding the thermal
imaging search warrant and erred in not suppressing the evidence obtained from the thermal
imaging scan of 1262 Welsh Avenue and the surrounding neighborhood.
“Strong Heat Signature”
{¶37} Mr. Henderson next argues that Detective Quior, by concluding in his affidavit
supporting the warrant to search the house that the prior thermal imaging scan revealed a “strong
heat signature” emitting from the basement, usurped the issuing judge’s authority to draw such
inferences.
{¶38} Because we have already concluded above that the trial court should have
suppressed any evidence obtained from the thermal imaging scan, we need not address any
further challenges to that evidence, as they have been rendered moot.
17
Validity of the Search Warrant for the Residence and Supporting Affidavit
{¶39} Mr. Henderson next argues that Detective Quior’s affidavit supporting the warrant
to search 1262 Welsh Avenue did not establish sufficient probable cause.
{¶40} Once again, the applicable standard of review is as follows:
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, * * * doubtful or
marginal cases in this area should be resolved in favor of upholding the warrant.
Myers, 2015-Ohio-2135, at ¶ 10, quoting George, 45 Ohio St. 3d 325, at paragraph two of the
syllabus.
{¶41} The affidavit supporting the warrant to search the residence at 1262 Welsh
Avenue sets forth Detective Quior’s knowledge training, and experience as well as a litany of
facts, including: (1) Detective Quior and the Summit County Drug Unit have been investigating
Mr. Henderson and others for the illegal cultivation of marijuana in Akron, Ohio, for several
months; (2) Mr. Henderson is a white male, 5’10” tall, weighing 195 pounds, and primarily
resides at 1262 Welsh Avenue; (3) on approximately January 10, 2017, anonymous information
was received that Mr. Henderson was involved in the illegal cultivation of marijuana and has
been growing several different strands of marijuana in his basement for a long period of time; (4)
the anonymous informant also stated that a red and blue minivan is always in the driveway, and
records show that Mr. Henderson has a red Ford van registered to him; (5) Detective Quior
conducted surveillance and positively identified Mr. Henderson in the front yard of the address;
(6) electricity-usage data for 1262 Welsh Avenue and three comparable houses—a summary of
18
which is included in the affidavit—was subpoenaed on January 19, 2017, and the data shows
1262 Welsh Avenue consuming a “considerably higher” amount of electricity than the next
highest house; (7) the electric bill for the house is in the name of another man (“G.B.”) who rents
the house; (8) Detective Quior knows through his training and experience that individuals who
cultivate marijuana consume much higher amounts of energy due to the use of certain necessary
components, including special lighting, irrigation systems, and ballast systems; (9) on January
23, 2017, police secured a search warrant for thermal imaging, which was executed and
“revealed a strong heat signature emitting from the basement area of the address that was not
consistent with surrounding houses”; (10) Detective Quior knows through his training and
experience that extreme lighting is needed for the cultivation of marijuana, causing a much
higher heat signature in the house. The trial court found that “the totality of the circumstances—
i.e. the tip from a confidential source, the utility bills, and [Detective] Quior’s observations of
activity at the property—provide probable cause for the issuance of a search warrant for the
Welsh Avenue property.”
{¶42} As discussed above, the evidence obtained from the thermal imaging scan should
have been suppressed, so any reference to the results of the scan must be therefore stricken from
this affidavit as well. When a trial court determines that a portion of the affidavit supporting a
search warrant must be stricken, the question becomes whether the remaining averments in the
affidavit “provided a substantial basis for the judge to conclude that there was ‘a fair probability
that contraband or evidence of a crime [would] be found [in a particular place.]’” State v. Perry,
9th Dist. Lorain No. 15CA010889, 2017-Ohio-1185, ¶ 12, quoting State v. Jackson, 9th Dist.
Lorain No. 14CA010593, 2015-Ohio-3520, ¶ 32, quoting State v. Stull, 9th Dist. Summit No.
19
27036, 2014-Ohio-1336, ¶ 14, quoting George, 45 Ohio St. 3d 325, at paragraph one of the
syllabus.
{¶43} With no evidence of any oral testimony presented to the issuing judge in
conjunction with the affidavit, we are once again limited to the four corners of the affidavit in
our review. See Castagnola, 145 Ohio St. 3d at 25. Although Detective Quior testified at the
suppression hearing as to some additional information such as his investigation into Mr.
Henderson’s criminal background, his surveillance of the residence revealing that the trash was
never put out front, and the fact that he actually knew the informant and had used him in the past,
none of that information was included in the affidavit supporting the warrant to search the house.
{¶44} The affidavit vaguely references the police “investigating” Mr. Henderson for
marijuana cultivation, but provides no details regarding the investigation and reveals no
information corroborating the anonymous tip that alleged illegal activity is occurring within the
residence. It refers to the anonymous tip, but does not address the tipster’s veracity, reliability,
or basis of knowledge. See Gates, 462 U.S. at 239. It simply provides a physical description of
Mr. Henderson and states that Detective Quior personally observed his presence one time in the
front yard of the residence. It describes a vehicle registered to Mr. Henderson and references the
anonymous tip that the same color and type of vehicle can be seen in the driveway of the
residence, but it provides no information supporting the informant’s assertion of any illegality as
being reliable. “An accurate description of a subject’s readily observable location and
appearance is of course reliable in this limited sense: It will help the police correctly identify the
person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has
knowledge of concealed criminal activity.” Florida v. J.L., 529 U.S. 266, 272 (2000). With
anonymous tips, there must be some indicia of reliability as to the assertion of illegality, not just
20
its tendency to identify a specific person. State v. Cunningham, 9th Dist. Summit No. 26744,
2014-Ohio-1924, ¶ 7, citing J.L. at 272.
{¶45} At best, one can ascertain from this affidavit what Mr. Henderson looks like,
where he lives, what vehicle he drives, the name of the man renting the house, and how much
electricity the house has used in the past year. Therefore, even while giving great deference to
the issuing judge’s determination of probable cause, and while recognizing that doubtful or
marginal cases should be resolved in favor of upholding the warrant, we are once again
constrained to conclude that this “bare bones” affidavit supporting the warrant to search the
residence at 1262 Welsh Avenue does not include enough information to support a determination
that probable cause existed. Moreover, we again conclude that the affidavit is so lacking in
indicia of probable cause as to render official belief in its existence entirely unreasonable,
therefore rendering the good faith exception to the exclusionary rule inapplicable. See George,
45 Ohio St. 3d at 331, citing Leon, 468 U.S. at 923.
{¶46} Because the trial court’s findings of fact are not supported by competent, credible
evidence, we must conclude that the trial court erred in upholding the search warrant for the
residence at 1262 Welsh Avenue and, thus, erred in not suppressing the evidence obtained from a
search of that residence.
{¶47} We recognize that an illegal marijuana grow operation was indeed ultimately
discovered in Mr. Henderson’s basement, but we simply cannot ignore the fatal deficiencies
permeating the two search-warrant affidavits presented to the issuing judge in this case. “There
is always a temptation in criminal cases to let the end justify the means, but as guardians of the
Constitution, we must resist that temptation.” State v. Gardner, 135 Ohio St. 3d 99, 2012-Ohio-
5683, ¶ 24.
21
{¶48} Mr. Henderson’s sole assignment of error is sustained.
III.
{¶49} Mr. Henderson’s sole assignment of error is sustained. The judgment of the
Summit County Court of Common Pleas is reversed, and the cause is remanded for further
proceedings in accordance with this opinion.
Judgment reversed
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
THOMAS A. TEODOSIO
FOR THE COURT
22
HENSAL, J.
CONCURS.
CARR, J.
DISSENTING.
{¶50} I respectfully dissent from the judgment of the majority, as I would affirm the trial
court’s judgment based on the limited arguments made on appeal. Henderson’s challenge on
appeal with respect to the anonymous tip does not relate to the sufficiency of the warrant for
thermal imaging. Instead, in his brief, he states the facts “are insufficient to support a reasonable
suspicion of criminal activity warranting the issuance of the subpoena to Ohio Edison for electric
usage data and comparison.” The majority views this as a typographical error and proceeds to
analyze the sufficiency of the warrant for the thermal imaging search and considers the nature of
the tip in so doing. Notably, Henderson’s motion to suppress repeated the same allegation
contained in his brief, and, even the trial court’s judgment entry states that Henderson’s first
argument was a challenge to “the sufficiency of the subpoena * * * for the electricity usage date
because it was based on information received from an anonymous tip.” Accordingly, I cannot
say that Henderson’s statement in his brief was a typographical error. As I cannot say that
Henderson has adequately challenged the issue that the majority has raised and found to be
reversible error, I respectfully dissent.
APPEARANCES:
JEFFREY N. JAMES, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.