State v. Gleason

[Cite as State v. Gleason, 2022-Ohio-3893.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
: Case No. 22-CA-00003
MARILYN GLEASON :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 21CR0038
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 31, 20223
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
NANCY RIDENOUR JORDEN M. MEADOWS
111 North High Street P.O. Box 310
P.O. Box 569 Logan, OH 43138
New Lexington, OH 43764
Perry County, Case No. 22-CA-00003 2
Wise, Earle, P.J.
{¶ 1} Defendant-Appellant Marilyn Gleason appeals the March 11, 2022
judgement of the Perry County Court of Common Pleas overruling her motion to
suppress. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} The parties herein agree on the facts. The Central Ohio Drug Enforcement
Taskforce (CODE) had received information regarding appellant and her two brothers,
Bryan and Alan Ferguson, selling methamphetamine since 2014. The siblings live in
adjacent houses on State Route 669 NE in Perry County. Appellant lives at 7650 State
Route 669 NE, Bryan at 7626, and Alan at 7642. A search warrant for appellant's home
was obtained on Friday October 3, 2020 by Perry County Sherriff's Office Detective
Lieutenant Kevin Starrett, also member of the CODE Taskforce. The information available
to Starrett and relied upon in his affidavit for the search warrant were as follow:
{¶ 3} On August 19, 2014, appellant purchased methamphetamine at a residence
in Crooksville, Ohio which was under surveillance for drug activity. She was stopped as
she left the residence by Starrett and consented to a search which yielded .31 grams of
methamphetamine. At that time, appellant provided her address at 7650 State Route 669
NE.
{¶ 4} On October 10, 2014, an active methamphetamine lab was discovered by
Perry County Sheriff's deputies at 7626 State Route 669 NE. Alan Ferguson was charged
and convicted in that matter.
{¶ 5} On March 17, 2017, CODE officers conducted a search at Bryan Ferguson's
home at 7626 State Route 669 NE. Methamphetamine was located in Ferguson's
bedroom and on the person of Christopher Gleason, appellant's son.
Perry County, Case No. 22-CA-00003 3
{¶ 6} On June 27, 2019, Bryan Wolfe visited the Ferguson property and later sold
drugs to an informant. While doing so, Wolfe told the informant that his supplier, Michael
Whitehouse, would be delivering an ounce of methamphetamine to the Fergusons on
State Route 669. In the process of making the delivery, Whitehouse was intercepted by
law enforcement and found to have two ounces of methamphetamine in his vehicle.
{¶ 7} On August 27, 2019, Starrett met with Tracy Love who was under indictment
in Muskingum County for aggravated trafficking in drugs. With the assistance of counsel
Love provided a proffer. Love provided addresses for appellant and her brothers,
indicated Bryan Ferguson was dealing large quantities of methamphetamine and that she
had seen these large quantities as recently as a month before her proffer. Love permitted
a search of her cell phone which produced messages between Love and appellant
indicating appellant was trafficking in methamphetamine for Love. In the messages Love
was demanding money owed her by appellant.
{¶ 8} On July 30, 2020, the Federal Bureau of Investigation was investigating
activities by Michael Siegenthal who was caught conspiring to rob and murder several
drug dealers in the Zainesville and Muskingum County area. Siegenthal identified
appellant and her brothers as methamphetamine dealers. He indicated they sold from
their residences and a garage on the hill at their property. Siegenthal further stated he
had purchased methamphetamine from appellant on July 29, 2020 and that she and her
brothers were known to possess up to half a pound of methamphetamine at a time. As to
the layout of the property, Siegenthal stated appellant lived in the house on the left side
of the driveway and one of her brothers lived in the house on the right side of the driveway.
{¶ 9} On September 30, 2020, Russell Knight was observed by law enforcement
officers at the Ferguson/Gleason property. While he was there, several other vehicles
Perry County, Case No. 22-CA-00003 4
came and went. Officers attempted to stop Knight as he left, but he fled into the woods
on his dirt bike. Knight was, however, arrested the following day and admitted to buying
methamphetamine from Bryan and using methamphetamine on the property. He stated
the sale took place in a garage on the property.
{¶ 10} On October 2, 2020, Starrett presented an affidavit containing the above
outlined facts to Perry County Municipal Court Judge Dean Wilson. Judge Wilson signed
the search warrant the same day.
{¶ 11} The warrant was executed on October 6, 2020 at 7650 State Route 669 NE.
Inside appellant's residence officers located methamphetamine, cocaine, oxycodone,
scales, baggies, drug paraphernalia, weapons, and pay/owe sheets connected to
appellant.
{¶ 12} Appellant was arrested and subsequently interviewed. She admitted she
and her brother Bryan were selling methamphetamine from their property.
{¶ 13} On May 26, 2021, the Perry County Grand Jury returned an indictment
charging appellant with five counts of aggravated possession of drugs, and one count
each of aggravated trafficking in drugs, illegal manufacture of drugs, and possession of
cocaine. Appellant pled not guilty to the charges.
{¶ 14} On February 17, 2022, appellant filed a motion to suppress the evidence
obtained as a result of the search of her home alleging the information contained in the
affidavit was insufficient, stale, and lacked indicia of reliability. At a hearing held on
February 23, 2022 the parties stipulated that October 2, 2020, when the warrant was
issued, was a Friday and October 6, 2020, when the warrant was served, was a Tuesday.
No testimony was presented on the motion to suppress. Rather the parties briefed the
matter.
Perry County, Case No. 22-CA-00003 5
{¶ 15} On March 7, 2022, the state filed its response and on March 11, 2022, the
trial court issued its decision overruling appellant's motion to suppress.
{¶ 16} On March 17, 2022, appellant entered pleas of no contest to count two,
aggravated possession of drugs, a felony of the third degree, count seven, aggravated
possession of drugs, a felony of the fifth degree, and count eight, possession of cocaine,
a felony of the fifth degree. The state dismissed the remaining counts of the indictment.
The trial court found appellant guilty, convicted her, and sentenced her to an aggregate
total of 42 months incarceration.
{¶ 17} Appellant timely filed an appeal and the matter is now before this court for
consideration. She raises three assignments of error as follow:
I
{¶ 18} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN OVERRULING
APPELLANT'S MOTION TO SUPPRESS WHERE THE SEARCH WARRANT WAS
INVALID BECAUSE THE AFFIDAVIT UPON WHICH THE SEARCH WARRANT WAS
BASED CONTAINED STALE INFORMATION AND LACKED EVIDENCE OF ONGOING
CRIMINAL ACTIVITY BY THE APPELLANT, THEREFORE FAILING TO ESTABLISH
PROBABLE CAUSE THAT EVIDENCE OF CRIMINAL ACTIVITY WOULD BE FOUND
AT THE SITE OF THE SEARCH."
II
{¶ 19} "THE TRIAL COURT ERRED IN VIOLATION OF APPELLANT'S RIGHT
TO DUE PROCESS PURSUANT TO THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION WHEN THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
Perry County, Case No. 22-CA-00003 6
APPELLANT'S MOTION TO SUPPRESS WHEN THE AFFIDAVIT RELIED ON
INFORMANTS WHO LACK INDICIA OF RELIABILITY."
III
{¶ 20} "THE TRIAL ERRONEOUSLY FOUND THAT THERE WAS A GOOD
FAITH EXCEPTION TO THE EXCLUSIONARY RULE."
I, II
{¶ 21} We address appellants first and second assignments of error together. In
her first assignment of error, appellant argues the search warrant was invalid because
the information contained in the affidavit was stale and lacked evidence of ongoing
criminal activity by appellant. In her second assignment of error, appellant argues the
affidavit relied on information from informants who lacked indicia of reliability. We
disagree.
Standard of Review
{¶ 22} As stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio St.3d
165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12:
"Appellate review of a motion to suppress presents a mixed question
of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-
5372, 797 N.E.2d 71, ¶ 8. In ruling on 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." Id., citing State v. Mills, 62 Ohio St.3d 357, 366, 582
N.E.2d 972 (1992). On appeal, we "must accept the trial court's
findings of fact if they are supported by competent, credible
Perry County, Case No. 22-CA-00003 7
evidence." Id., citing State v. Fanning, 1 Ohio St.3d 19, 20, 437
N.E.2d 583 (1982). Accepting those facts as true, we must then
"independently determine as a matter of law, without deference to
the conclusion of the trial court, whether the facts satisfy the
applicable legal standard." Id.{¶ 23} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690,
116 S.Ct. 1657, 1663, 134 L.Ed.2d 94 (1996), "…as a general matter determinations of
reasonable suspicion and probable cause should be reviewed de novo on appeal."
Search Warrants in General
{¶ 24} The Fourth Amendment to the United States Constitution and Section 14,
Article I, Ohio Constitution, prohibit the government from conducting unreasonable
searches and seizures of persons or their property. Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968); State v. Andrews, 57 Ohio St.3d 86, 87, 565 N.E.2d 1271(1991). In determining the sufficiency of probable cause in an affidavit submitted for a
search warrant, a trial judge or magistrate must make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit, 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, at paragraph one of the syllabus (1980), citing Illinois
v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). As a reviewing
court, we must accord great deference to the issuing judge's determination of probable
cause. See George, at paragraph two of the syllabus. Doubtful or marginal cases should
be resolved in favor of upholding the warrant. Id. The totality of the circumstances must
Perry County, Case No. 22-CA-00003 8
be examined in determining whether probable cause existed for a search warrant. Illinois
v. Gates, supra. "Probable cause" means only the probability and not a prima facie
showing of criminal activity. George, supra, at 644. See, also, Beck v. Ohio, 379 U.S. 89,
85 S.Ct. 223, 13 L.Ed.2d 142 (1964).
Staleness
{¶ 25} "There is no arbitrary time limit that dictates when information [offered to
support a search warrant application] becomes stale." State v. Ingold, 10th Dist. Franklin
No. 07-AP648, 2008-Ohio-2303. Rather, "[t]he test for staleness is whether the alleged
facts justify the conclusion that contraband is probably on the person or premises to be
searched at the time the warrant issues." Id. "The question of staleness is not measured
solely by counting the days between the events listed in the affidavit and the application
for warrant." Id. at 23. "Ohio courts have identified a number of factors to consider in
determining whether the information contained in an affidavit is stale, including the
character of the crime, the criminal, the thing to be seized, as in whether it is perishable,
the place to be searched, and whether the affidavit relates to a single isolated incident or
ongoing criminal activity." Id.
{¶ 26} Relevant here, when an affidavit supporting a warrant involves ongoing
criminal activity like drug trafficking, the affidavit may support the issuance of a search
warrant even when the information provided in the affidavit is not recent. State v. Stewart,
5th Dist. Perry No. 21-CA-00008, 2021-Ohio-4444 ¶ 15 citing United States v. Ortiz, 143
F.3d 728, 733 (2d Cir. 1998), and United States v. Martino, 664 F.2d 860, 867 (2d Cir.
1981) ("[W]hen the supporting facts 'present a picture of continuing conduct or an ongoing
activity, ... the passage of time between the last described act and the presentation of the
application becomes less significant.' ")
Perry County, Case No. 22-CA-00003 9
{¶ 27} For example, information in an affidavit over one month old has been found
to support probable cause to issue a search warrant where the affidavit describes ongoing
criminal activity. See, e.g., State v. Clouser, 4th Dist. Highland No. 16CA4, 2016-Ohio-
5370, 2016 WL 4268772, ¶ 16-17 (two and one-half months between last incidents of
drug transactions and warrant application not stale and supported probable cause); State
v. Prater, 12th Dist. Warren No. CA2001-12-114, 2002-Ohio-4487, 2002 WL 2005708, ¶
10-14 (six months between last drug transactions and warrant application not stale and
supported probable cause).
{¶ 28} The affidavit at issue indicates appellant and both her brothers have been
persons of interest to the CODE task force since August of 2014. Affidavit ¶ 3. Specific to
the most recent information contained in the affidavit regarding appellant, on August 27,
2019, a search of Tracy Love's cell phone indicated appellant was trafficking in
methamphetamine for Love. Affidavit, ¶ 9. On July 30, 2020, Michael Siegenthal was
interviewed by FBI and CODE agents and corroborated information from Love when he
identified appellant and her brothers as methamphetamine dealers. He indicated they
sold from their residences and a garage on the hill at their property. Siegenthal further
stated he had purchased methamphetamine from appellant just the day before and that
she and her brothers were known to possess up to half a pound of methamphetamine at
a time. On the day he purchased methamphetamine from appellant she had one ounce.
Siegenthal went to appellant's home to buy drugs with Russell Knight. Affidavit ¶ 10. On
October 1, 2020, Knight corroborated information from Siegenthal when he reported
being on the Gleason/Ferguson property on September 30, 2020, purchasing
methamphetamine from Bryan in the garage, and observing Bryan selling to others
present.
Perry County, Case No. 22-CA-00003 10
{¶ 29} Based on the information contained in the affidavit, trafficking in
methamphetamine appears to be a Ferguson/Gleason family enterprise as it establishes
a pattern of criminal activity by appellant and her family members over many years. The
more recent information in the affidavit regarding appellant indicates she continued to be
involved in trafficking methamphetamine. Siegenthal purchased methamphetamine from
appellant just two months before the warrant was issued. Given the ongoing nature of
drug trafficking, we find the information contained in the affidavit was sufficiently
contemporaneous in time to support a finding of probable cause.
Reliability of Informants
{¶ 30} Appellant also argues the affidavit relied on criminal informants who lacked
indicia of reliability. In support, appellant cites State v. Siegel, 4th Dist. 180 N.E.3d 574,
2021-Ohio-4208 for the premise that an affiant must demonstrate some indicia of
reliability when an identified informant is part of the criminal milieu. In that matter the
Fourth District noted:
Although Connin [6th Dist. Fulton No. F-20-005, 2020-Ohio-6867]
states, with respect to a known informant that is part of the criminal
milieu, that "the affiant must attest to the informant's veracity,
reliability, or basis of knowledge or must independently corroborate
the information[,]" the requirements are improperly stated in the
disjunctive. (Emphasis added.) Id. at ¶ 18. Instead, the affiant must
attest to the informant's veracity, reliability, and basis of knowledge,
or must independently corroborate the information. See State v.
Perry County, Case No. 22-CA-00003 11
Kerns, 4th Dist. Highland No. 15CA6, 2016-Ohio-63, 2016 WL
112422, ¶ 18
{¶ 31} We note that Siegel is distinguishable from the instant matter in that only
one informant was involved in Siegel, and the affiant involved did not provide independent
corroboration of the information provided by the informant. Here however, Starrett
corroborated the information provided by each informant through independent police
work. The information obtained from Love's phone was corroborated through an interview
with Siegenthal, and the information from Siegenthal was corroborated through an
interview with Knight. The information from all three was the same – appellant and her
brothers were trafficking in drugs on their property. Moreover, on September 30, 2020,
officers conducted surveillance of the Gleason/Furguson property and observed several
individuals coming and going from the property including Knight. We therefore find
sufficient independent corroboration of the information provided by each informant.
{¶ 32} The first and second assignments of error are overruled.
III
{¶ 33} In her final assignment of error, appellant argues the trial court erred in
finding that even if there was not a substantial basis for concluding probable cause
existed, the good-faith exclusionary rule should apply.
{¶ 34} Because we have found the affidavit in support of the warrant was sufficient
to show the judge had probable cause to issue the warrant, we decline to analyze the
application of the good-faith exception since the issue is moot. See Pernick v. Dallas, 7th
Dist. Jefferson No. 21 JE 0011, 2021-Ohio-4635, ¶ 51, appeal not allowed, 166 Ohio
St.3d 1449, 2022-Ohio-994, 184 N.E.3d 159 (declining to address a moot issue).
Perry County, Case No. 22-CA-00003 12
{¶ 35} Appellant's final assignment of error is overruled.
{¶ 36} The judgment of the Perry County Court of Common Pleas is affirmed.
By Wise, Earle, P.J.
Gwin, J. and
Delaney, J. concur.
EEW/rw
[Cite as State v. Gleason, 2022-Ohio-3893.]