State v. Johnson

[Cite as State v. Johnson, 2014-Ohio-671.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 13AP-637
v. : (C.P.C. No. 12CR-02-906)
John D. Johnson, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on February 25, 2014
Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for
appellee.
Stuart A. Benis and William Lazarow, for appellant.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, John D. Johnson ("appellant"), appeals from a
judgment of the Franklin County Court of Common Pleas imposing a sentence of five
years of imprisonment following his plea of no contest to the criminal charges on which
he was indicted. Because we conclude that the trial court properly denied appellant's
motion to suppress evidence obtained pursuant to a search warrant, we affirm.
{¶ 2} On the evening of July 23, 2011, Detective Jon Dillon of the Franklin County
Sheriff's Department received a telephone call from an unknown individual, who
indicated that appellant was storing narcotics in Unit B2 of the Car-Go Self Storage facility
on Westerville Road. Based on the tip, Detective Dillon requested that Detective Thomas
Lung, a canine handler with the Franklin County Sheriff's Department, perform a canine
sniff test on the storage facility. On July 25, 2011, Detective Dillon, Detective Lung, and
No. 13AP-637 2
Franklin County Sheriff's Department Corporal Coleman took the canine to the storage
facility. After being admitted to the storage facility by the managers and obtaining
permission to perform the canine sniff test, Detective Lung ran the canine around
building B of the storage facility. The canine signaled that it detected the odor of narcotics
outside Unit B2. Detective Dillon then left to prepare a request for a warrant to search
Unit B2, while Detective Lung and Corporal Coleman remained at the storage facility.
After Detective Dillon left, appellant arrived at the storage facility. In response to
questioning from Detective Lung, appellant admitted that he had cocaine inside Unit B2.
{¶ 3} Detective Dillon prepared an affidavit in support of a search warrant
attesting that a "reliable source" provided information about possible narcotics being
stored by appellant at Unit B2 of the Car-Go Self Storage facility. The affidavit further
attested that Detective Dillon, Detective Lung, and Corporal Coleman were admitted to
the storage facility by its managers and obtained permission for the canine sniff test. The
affidavit attested that the canine indicated the odor of narcotics at the bottom seam of the
door for Unit B2. The affidavit attested that appellant arrived at the storage facility after
the canine sniff test and admitted to Detective Lung that he had cocaine stored in Unit B2.
Finally, the affidavit attested that appellant had several prior arrests, convictions and/or
incarcerations for possession of drugs. Detective Dillon presented the affidavit and search
warrant request to a Franklin County municipal judge, who granted the search warrant.
Upon executing the warrant, deputies located cocaine inside a dresser drawer inside Unit
B2.
{¶ 4} Appellant was indicted on one count of possession of crack cocaine with a
firearm specification and one count of possession of cocaine with a firearm specification.
Appellant moved to suppress the evidence obtained pursuant to the search warrant.
Following a hearing, the trial court denied the motion to suppress. Appellant
subsequently entered a no-contest plea on all charges, and the trial court sentenced him
to a total of five years of imprisonment.
{¶ 5} Appellant appeals from the trial court's judgment, assigning a single error
for this court's review:
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS
EVIDENCE OBTAINED BY THE STATE DURING ITS
No. 13AP-637 3
IMPROPER SEARCH AND SEIZURE OF ITEMS FROM
DEFENDANT'S STORAGE LOCKER, IN VIOLATION OF
DEFENDANT'S RIGHTS UNDER THE FOURTH AMEND-
MENT TO THE U.S. CONSTITUTION, AND SECTION 14,
ARTICLE I OF THE OHIO CONSTITUTION.
{¶ 6} The Supreme Court of Ohio articulated the standard of review for a motion
to suppress in State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372:
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.
(Internal citations omitted.) Id. at ¶ 8. In this case, the trial court did not make any
findings of fact. We apply a de novo standard in determining whether the trial court
properly denied appellant's motion to suppress. Id. See also State v. McDowell, 10th
Dist. No. 13AP-229, 2013-Ohio-5300, ¶ 14.
{¶ 7} The Fourth Amendment to the U.S. Constitution, applied to the states
through the Fourteenth Amendment, provides that "[t]he 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, supported by
oath or affirmation, and particularly describing the place to be searched, and the persons
or other things to be seized." The Ohio Constitution contains a nearly identical provision.
Ohio Constitution, Article I, Section 14. See also R.C. 2933.22(A); Crim.R. 41(C).
{¶ 8} When determining whether an affidavit in support of a search warrant
demonstrates probable cause, a magistrate must " 'make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit before him,
including the "veracity" and "basis of knowledge" of persons supplying hearsay
information, there is a fair probability that contraband or evidence of a crime will be
found in a particular place.' " State v. George, 45 Ohio St.3d 325 (1989), paragraph one of
No. 13AP-637 4
the syllabus, quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983). In reviewing the
sufficiency of probable cause in an affidavit, an appellate court must not substitute its
judgment for that of the magistrate but, rather, ensure that the magistrate "had a
substantial basis for concluding that probable cause existed." George at paragraph two of
the syllabus. Such analysis is undertaken with great deference to the magistrate's
determination of probable cause, and marginal cases should be resolved in favor of
upholding the warrant. Id.{¶ 9} Appellant argues that the affidavit upon which the search warrant was
based failed to support a finding of probable cause because the affidavit indicated that the
tip came from a "reliable source," despite the fact that, at the time he received the tip,
Detective Dillon did not know who the informant was and did not have any other evidence
that the informant was reliable. Courts have identified three broad classes of informants:
(1) the anonymous informant, (2) the known informant from the criminal world who has
previously provided reliable tips, and (3) the identified citizen informant. Maumee v.
Weisner, 87 Ohio St.3d 295, 300 (1999). The anonymous or unknown informant is
generally seen as the least reliable of these sources, and information from an unknown
informant usually requires independent police corroboration. Id., citing Alabama v.
White, 496 U.S. 325, 329 (1990). Appellant argues that Detective Dillon's characterization
of the informant as a "reliable source" was inaccurate because he had no prior contact
with the informant, nor any evidence that the informant was truthful or reliable. At the
suppression hearing, Detective Dillon testified that he did not know the person who gave
the tip and that he had no way of knowing, at the time he took the call, whether the person
was a reliable informant. The state argues that, because the informant provided specific
information that included the name of the storage facility, the unit number, and
appellant's name, and because Detective Dillon was able to confirm this information
through subsequent investigation, the information could properly be characterized in the
affidavit as reliable.
{¶ 10} "To successfully attack the veracity of a facially sufficient 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.
Waddy, 63 Ohio St.3d 424, 441 (1992), quoting Franks v. Delaware, 438 U.S. 154, 155-56
No. 13AP-637 5
(1978), superseded by constitutional amendment on other grounds, as stated in State v.
Smith, 80 Ohio St.3d 89, 102, fn.4 (1997). "Reckless disregard" occurs when an affiant
has serious doubts about the truth of an assertion. Id. However, "[e]ven if the affidavit
contains false statements made intentionally or recklessly, a warrant based on the
affidavit is still valid unless, 'with the affidavit's false material set to one side, the
affidavit's remaining content is insufficient to establish probable cause.' " Waddy at 441,
quoting Franks at 156.
{¶ 11} This court has previously concluded that an affidavit may demonstrate
probable cause even where it contains misinformation or misstatements. State v. Allen,
10th Dist. No. 08AP-264, 2008-Ohio-6916; State v. DeBlanco, 10th Dist. No. 89AP-1493
(July 30, 1991). In Allen, the police obtained a search warrant based on information
provided by a confidential informant and a controlled drug purchase involving the
informant, a middleman, and the defendant. Allen at ¶ 2-4. The trial court granted the
defendant's motion to suppress, concluding, in part, that the affidavit did not vouch for
the middleman's reliability and that the informant did not accompany the middleman
into the apartment where the controlled buy allegedly occurred. Id. at ¶ 10. On appeal,
this court reversed the trial court's judgment. The court conceded that the affidavit
contained misinformation regarding whether the informant actually saw the defendant
sell drugs to the middleman. Id. at ¶ 29. However, the court concluded that the affidavit
contained sufficient information to establish probable cause that criminal activity was
occurring at the location of the controlled buy, even without the assertion that the
defendant sold drugs to the middleman. Id. at ¶ 30. The affidavit also included a
misstatement about when the informant told the police that the middleman had seen drug
activity at the location. Id. at ¶ 31. Once again, the court found that, even without the
misstatement, the affidavit was sufficient to demonstrate probable cause that illegal drug
activity was occurring at the location. Id. Based on these conclusions, the court held that
the affidavit established probable cause and reversed the trial court's judgment
suppressing the evidence obtained pursuant to the search warrant. Id. at ¶ 41.
{¶ 12} Similarly, in DeBlanco, an informant alerted a state agency that the
defendant was fraudulently billing the state for allergy services to Medicaid patients. A
state investigator prepared an affidavit in support of a search warrant asserting that the
No. 13AP-637 6
defendant improperly performed allergy "tests." The defendant moved to suppress the
evidence obtained pursuant to the warrant, arguing that the proper procedural
terminology code referred to allergy "injections" rather than allergy "tests." This court
affirmed the trial court's denial of the motion to suppress, concluding that, even if the
word "test" was removed from the affidavit, the remaining content demonstrated
sufficient probable cause to justify issuance of the warrant. See also State v. Norman, 5th
Dist. No. 2010-CA-21, 2011-Ohio-568, ¶ 42 (holding that, even without characterization of
defendant as having "a lengthy history of illegal drug activity," the remaining content of
the affidavits was sufficient to establish probable cause that drug activity would be found
at the defendant's residence); State v. Harrington, 1st Dist. No. C-0800547, 2009-Ohio-
5576, ¶ 9-10 (holding that, even without false statements related to the defendant's
criminal history, the other facts in the affidavit supported a finding of probable cause).
{¶ 13} In this case, we need not reach the question of whether Detective Dillon's
characterization of the unknown informant as a "reliable source" constituted a false
statement because we conclude that, even without that characterization, the affidavit's
remaining content was sufficient to establish probable cause. The affidavit attested that
the drug-sniffing canine indicated that it detected the odor of narcotics at the bottom
seam of the door for storage Unit B2. This was the same unit where the informant
indicated the narcotics were being stored. Moreover, the affidavit indicated that, while
Detective Lung remained on the premises, appellant arrived at the storage unit and, in
response to questions, admitted that he had cocaine stored in storage Unit B2. Finally, the
affidavit indicated that appellant's criminal history included several prior arrests and
convictions for possession of drugs. Under these circumstances, we conclude that, even
without the characterization of the informant as a "reliable source," the remaining content
of the affidavit was sufficient to establish probable cause.
{¶ 14} Appellant also argues that Detective Dillon failed to disclose in his affidavit
"the fallibilities of canine sniff testing." (Appellant's Brief, 10.) We acknowledge that some
courts have held that an omission may be considered a false statement in an affidavit in
support of a search warrant. See, e.g., State v. Berry, 8th Dist. No. 87493, 2007-Ohio-
278, ¶ 37 (holding that omissions count as false statements if designed to mislead or made
in reckless disregard of whether they would mislead the magistrate). There was testimony
No. 13AP-637 7
at the suppression hearing regarding the success rate of the drug-sniffing canine that
performed the sniff test. However, appellant did not assert in his written motion to
suppress or at the suppression hearing that failure to disclose such information
constituted a false statement that would preclude the existence of probable cause. "It is
well-settled law that issues not raised in the trial court may not be raised for the first time
on appeal because such issues are deemed waived." State v. Barrett, 10th Dist. No. 11AP-
375, 2011-Ohio-4986, ¶ 13. Therefore, by failing to assert it below, appellant has waived
the argument that Detective Dillon's affidavit did not support a finding of probable cause
because it failed to disclose the failure rate of the canine that performed the sniff test.
{¶ 15} Finally, appellant argues that the state violated his right to privacy by
performing the drug canine sniff test in the area outside his storage locker. In effect,
appellant appears to argue that the state was required to obtain a search warrant before
having the drug-sniffing canine sniff the area outside the storage locker. Appellant cites
Florida v. Jardines, __ U.S. __, 133 S.Ct. 1409 (2013), recently decided by the United
States Supreme Court. In Jardines, the Supreme Court held that the use of trained police
dogs to investigate the home and its immediate surroundings constituted a search within
the meaning of the Fourth Amendment. Id. at 1417-18. Acting on an unverified tip that
Jardines was growing marijuana in his home, the police took a drug-sniffing canine onto
his front porch. The dog ultimately signaled that it identified the odor of drugs along the
base of Jardines' front door. The police then obtained a search warrant and, after
executing the warrant, located marijuana plants in the home. Id. at 1413. The court's
opinion held that taking the drug-sniffing canine onto the porch constituted a search
because "the officers learned what they learned only by physically intruding on Jardines'
property to gather evidence." Id. at 1417. Thus, the decision in Jardines was based on the
fact that the police entered onto a constitutionally protected area, i.e., the curtilage of
Jardines' home, without license to do so, in an attempt to discover incriminating
evidence. Id. at 1416-17.
{¶ 16} Appellant admits that the reasoning in Jardines was based on property
rights but urges this court to apply the concurring opinion of Justice Kagan, who asserted
that the activity constituted a search because, in addition to invading Jardines' property,
the police also violated Jardines' reasonable expectation of privacy in the area around his
No. 13AP-637 8
home. Id. at 1418-19 (Kagan, J., concurring). However, only two other justices joined in
that concurring opinion, and we decline to apply its reasoning to the present appeal.
Moreover, appellant has failed to establish that he had a reasonable expectation of privacy
in the area outside the storage locker, as opposed to the storage locker itself. Detective
Dillon testified at the suppression hearing that there was a fence around the entire storage
complex with an electronic gate. Presumably, any individual who rented a storage locker
in the facility would have had the code for the electronic gate and would have been able to
access the area in front of appellant's storage locker. Detective Dillon also testified that he
and Detective Lung were admitted to the storage complex by the facility managers. Under
these circumstances, appellant has failed to demonstrate that he had a reasonable
expectation of privacy in the area outside the storage unit. See State v. Harris, 12th Dist.
No. CA2007-04-089, 2008-Ohio-3380, ¶ 19 ("The area in front of the storage unit was
open to anyone who had access to the facility via their pass code, which included Officers
Lovejoy and Ki. * * * Because Harris had no reasonable expectation of privacy in the
possession of his cocaine and other contraband, and because a sniff and alert indicating
the location of contraband by a dog legally on the premises is not a search within the
meaning of the Fourth Amendment, Ki's sniff and alert on unit 819 without a search
warrant did not violate Harris' rights.").
{¶ 17} For the foregoing reasons, we overrule appellant's sole assignment of error
and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and O'GRADY, JJ., concur.
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