State v. Lang

[Cite as State v. Lang, 2023-Ohio-2026.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220360
TRIAL NO. B-2104504
Plaintiff-Appellant, :
vs. : O P I N I O N.
KRIS LANG, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 21, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Gregory A. Cohen, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Plaintiff-appellant state of Ohio appeals the decision of the Hamilton
County Court of Common Pleas granting a motion to suppress filed by defendant-
appellee Kris Lang on the basis that the search warrant was not supported by probable
cause and that the good-faith exception to the exclusionary rule did not apply. We find
merit in the state’s assignment of error. Therefore, we reverse the trial court’s
judgment and remand the cause for further proceedings.
{¶2} The record shows that in March 2021, Detective Keith Ingram of the St.
Bernard Police Department and Detective Kenneth Devers of the Norwood Drug Task
Force received information from a confidential informant that an individual known as
“Dread” was distributing cocaine in the St. Bernard and Avondale neighborhoods. The
informant described Dread as a black male in his late 50s who had a beard and long
dreadlocks. The informant also provided a phone number for Dread and the address
where he was selling drugs, 3672 Vine Street.
{¶3} Using the information from the informant, the detectives identified
Lang as Dread. They showed a picture of Lang to the informant, who confirmed that
Lang was the person he knew to be Dread. Further investigation revealed that Lang
was not living at the address listed in the Bureau of Motor Vehicles (“BMV”) records.
The detectives determined that his residence was 4016 St. Martins Place. Through
numerous hours of surveillance, they discovered that Lang usually drove a brown 2017
Nissan Altima, which was owned by Charlene Maddox, who they believed was Lang’s
girlfriend. The BMV listed her address as 4016 St. Martins Place.
{¶4} In July 2021, the detectives started conducting surveillance on both
3672 Vine Street and 4016 St. Martins Place. At the Vine Street address, Detective
Ingram observed what he believed based on his training, knowledge, and experience
2
OHIO FIRST DISTRICT COURT OF APPEALS
to be a drug transaction, which involved Lang and another individual known to
Detective Ingram. The detectives captured multiple still photographs of what they
believed to be drug transactions. They obtained a warrant to install a GPS device on
the Nissan that Lang had been observed driving. That device was installed on July 21,
2021.
{¶5} Based on the information they had gathered, the detectives decided to
conduct controlled purchases of cocaine. The first occurred on July 29, 2021. The
detectives met the informant at a neutral location. The informant then placed a
recorded call to Lang and ordered one-half ounce of cocaine, and Lang instructed him
to go to 3672 Vine Street. The detectives provided the informant with $560 and a
covert recording device, which allowed the detectives to monitor the transaction. At
approximately 5:38 p.m., Lang gave the informant cocaine, and the informant paid
him $560.
{¶6} A second controlled buy occurred on August 25, 2021. At about 4:46
p.m., the informant met Lang at 3672 Vine Street, and both went inside the residence.
Lang led the informant to the kitchen where he pulled out a bag containing what
appeared to be cocaine. Lang weighed the substance and packaged it to complete the
transaction.
{¶7} Based on their surveillance and data obtained from the GPS unit, the
detectives established a distinct pattern of movement between the St. Martins Place
residence and the Vine Street address. Lang would leave St. Martins Place daily
between 1:30 and 3:00 p.m. and travel to 3672 Vine Street, where he would sell drugs.
Afterward, he would return to the St. Martins Place address, where he would spend
the night. Based on this pattern and his experience in drug investigations, Detective
Ingram believe that Lang was storing drugs and cash at the St. Martins Place address.
3
OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} On August 27, 2021, Detective Ingram sought search warrants for both
the Vine Street and St. Martins Place addresses. A municipal court judge approved
the warrants, and the searches occurred at both addresses a few days later. A search
of the St. Martins Place address yielded a firearm and substantial quantities of cocaine
and marijuana.
{¶9} Lang filed a motion to suppress the evidence recovered from the St.
Martins Place address in which he argued that the affidavit supporting the search
warrant failed to establish probable cause that any illegal activity had occurred at that
address. He did not challenge the search of the Vine Street address. The trial court
granted the motion. It found that “no probable cause existed to justify the search of
4016 St. Martins Place.” It also found that probable cause “was so lacking” in the
affidavit “that the officer was not entitled to rely on the good faith exception to the
exclusionary rule.” This appeal followed.
{¶10} In its sole assignment of error, the state contends that the trial court
erred in granting Lang’s motion to suppress. It argues that the affidavit supporting
the search warrant for 4016 St. Martins Place established probable cause to search that
residence, and the trial court failed to give due deference to the issuing magistrate’s
determination that probable cause existed. It also argues that even if affidavit did not
show probable cause, the good-faith exception to the exclusionary rule applies. This
assignment of error is well taken.
{¶11} Appellate review of a motion to suppress presents a mixed question of
law and fact. We must accept the trial court’s findings of fact as true if competent,
credible evidence supports them. But we must independently determine whether the
facts satisfy the applicable legal standard. State v. Burnside, 100 Ohio St.3d 152,
4
OHIO FIRST DISTRICT COURT OF APPEALS
2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Richardson, 1st Dist. Hamilton No. C-
200187, 2021-Ohio-2751, ¶ 13.
{¶12} To establish probable cause to issue a search warrant, the supporting
affidavit must contain sufficient information to allow a magistrate to draw the
conclusion that evidence is likely to be found at the place to be searched. State v.
Martin, 2021-Ohio-2599, 175 N.E.3d 1004, ¶ 11 (1st Dist.). Probable cause exists when
a reasonably prudent person would believe that a fair probability exists that the place
to be searched contains evidence of a crime. State v. George, 45 Ohio St.3d 325, 544
N.E.2d 640 (1989), paragraph one of the syllabus; Martin at ¶ 11. “[I]t is clear that
‘only the probability, and not a prima facie showing, of criminal activity is the standard
of probable cause.’ ” (Emphasis deleted.) George at 329, quoting Illinois v. Gates, 462
U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Consequently, probable cause
“is not a high bar.” State v. Hobbs, 4th Dist. Adams No. 17CA1054, 2018-Ohio-4059,
¶ 35, quoting Dist. of Columbia v. Wesby, 138 U.S. 577, 586, 138 S.Ct. 577, 199 L.Ed.2d
637 (2018).
{¶13} A reviewing court, which includes a trial court ruling on a motion to
suppress, as well as an appellate court, must give great deference to the magistrate’s
probable-cause determination. George at 329-330; State v. Hampton, 1st Dist.
Hamilton No. C-080187, 2008-Ohio-6088, ¶ 16. “[A]fter-the-fact scrutiny by the
courts of the sufficiency of an affidavit should not take the form of de novo review.”
George at 329, quoting Gates at 236. Our duty is to ensure that the issuing magistrate
had a substantial basis for concluding that probable cause existed. See George at
paragraph two of the syllabus; State v. German, 1st Dist. Hamilton No. C-040263,
2005-Ohio-527, ¶ 12. Doubtful or marginal cases should be resolved in favor of
upholding the warrant. George at paragraph two of the syllabus.
5
OHIO FIRST DISTRICT COURT OF APPEALS
{¶14} Where oral testimony is not offered in support of a search-warrant
affidavit, the magistrate determines the sufficiency of the affidavit by evaluating the
facts contained in the four corners of the affidavit and applies an objective-
reasonableness standard. A reviewing court is concerned exclusively with the
statements contained within the affidavit itself. State v. Castagnola, 145 Ohio St.3d 1,
2015-Ohio-1565, 46 N.E.3d 638, ¶ 39.
{¶15} The affidavit supporting the warrant first described the house located at
4016 St. Martins Place. Then, it stated that the affiant had good cause to believe that
cocaine, cash and other accouterments of drug use and trafficking were concealed in
the house. Next, Detective Ingram discussed his qualifications and career history.
That section was followed by a section entitled, “Known Facts About Drug Traffickers,”
which was based upon Detective Ingram’s “training, experience, and participation in
other narcotics investigations.” Those facts included that “[d]rug dealers often use
their home, or the home of individuals close to them to store narcotics and protect
their assets.”
{¶16} The affidavit detailed the detectives’ investigation. It discussed how they
discovered, after numerous hours of surveillance, that Lang’s residence was at the St.
Martins Place address, and that Lang drove a 2017 brown Nissan Altima, which was
owned by Maddox. The affidavit further stated that because the information provided
by the informant “was verified by investigators,” the detectives decided to use the
informant to “conduct controlled purchases,” and described how those buys were
conducted.
{¶17} Next, the affidavit stated,
Detectives have maintained electronic and physical surveillance
on LANG since July 21, 2021. LANG has established a pattern which
6
OHIO FIRST DISTRICT COURT OF APPEALS
indicates his primary residence as 4016 St. Martins Place Cheviot, OH
45211. LANG spends the overnight hours at the aforementioned
address and generally leaves the address between 1:30 p.m. and 3:00
p.m. and proceeds to 3672 Vine St. Detectives believe LANG
disassociates himself from the St. Martins address to conceal his
narcotics trafficking from law enforcement and rival drug dealers.
Based on your Affiants [sic] training, knowledge, and experience[,] it is
common for individuals who distribute illegal narcotics to utilize
vehicles and residences of others to further their illegal activities.
Based on the foregoing facts investigators believe LANG is using
4016 St. Martins Place in Cincinnati, OH 45211 to store narcotics and
the proceeds of narcotics trafficking.
{¶18} In granting the motion to suppress, the trial court found that the
affidavit “lacked probable cause that any criminal activity occurred at 4016 St. Martins
Place.” The court noted that the only evidence in the affidavit as to Lang’s actions
involving 4016 St. Martins Place was that the surveillance of Lang at that address
“revealed that on dates – not identified as the dates of the narcotics buys at 3672 Vine
Street – Mr. Lang stayed overnight at 4016 St. Martins Place and left between 1:30 and
3:30 p.m. to go to 3672 Vine Street.” The court further stated that no facts were
provided in the affidavit to indicate that evidence was likely to be found at the St.
Martins Place address, and that the detective’s beliefs and experiences were
insufficient to demonstrate that evidence was likely to be found there. In that analysis,
the trial court failed to give deference to the issuing magistrate’s probable-cause
determination.
7
OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} The affidavit supporting the search warrant must set forth adequate
facts to establish a nexus between the place to be searched and the evidence sought,
which depends on the facts and circumstances of each individual case. Hobbs, 4th
Dist. Adams No. 17CA1054, 2018-Ohio-4059, at ¶ 58, citing State v. England, 1st Dist.
Hamilton No. C-040253, 2005-Ohio-375, ¶ 9-10. Nevertheless, the necessary nexus
need not be established by direct evidence. Hobbs at ¶ 58, citing England at ¶ 9.
{¶20} In State v. Young, 10th Dist. Franklin No. 18AP-845, 2019-Ohio-4639,
a case with similar facts, the appellate court upheld the search warrant for a drug
trafficker’s residence, even though there was no direct evidence of drug activity at that
location. In that case, the warrant stated that police officers had repeatedly observed
the defendant drive from his residence on Caldwell Place to locations where the police
had observed the defendant engaging in drug activity. The officers then observed the
defendant return to his Caldwell Place residence. The defendant filed a motion to
suppress evidence found at the Caldwell Place address, in which he argued that the
affidavit in support of the warrant did not demonstrate a nexus between the observed
drug activity and the location ultimately searched. The trial court denied the motion.
{¶21} In affirming the trial court’s decision, the appellate court found that the
pattern of movement between the Caldwell Place address and the locations of the drug
transactions was sufficient to support a finding of probable cause to search the
Caldwell Place residence. It stated that “a nexus exists between a known drug dealer’s
residence when some reliable evidence exists connecting to the criminal activity with
the residence.” Young at ¶ 18, quoting State v. Phillips, 10th Dist. Franklin No. 15AP-
1038, 2016-Ohio-5944, ¶ 14.
{¶22} It added,
8
OHIO FIRST DISTRICT COURT OF APPEALS
Young argues the information provided by the confidential informant
did not provide probable cause that Young was storing drugs at 1008
Caldwell Place. This court recently considered the question of whether
a sufficient nexus exists between a suspected drug dealer’s criminal
activity and the suspected drug dealer's residence. In [that recent case],
we held that “[t]he temporal proximity between appellant’s arrivals to
the residence and the controlled drug transactions, combined with [a
detective’s] experience in narcotics investigations, provided the
magistrate with a substantial basis to conclude that a nexus existed
between the place to be searched and the alleged criminal activity, and,
at the least, probable cause to believe the proceeds of a drug transaction
would be located in the residence.”
Young at ¶ 19, citing Phillips at ¶ 26.
{¶23} In this case, reliable evidence connected Lang’s drug activity to the St.
Martins Place address. The detectives conducted numerous hours of surveillance of
the two addresses and established a daily pattern of movement between the St.
Martins Place address and the Vine Street address. Every day, Lang traveled from the
St. Martin’s Place to the Vine Street address at roughly the same time, engaged in
confirmed drug transactions, and returned nightly to St. Martins Place. That pattern
caused Detective Ingram, who had numerous years of experience, to believe that
evidence of drug trafficking would likely be found at the St. Martins Place residence.
{¶24} The magistrate issuing the warrant had a substantial basis to find that
probable cause existed to search the residence at 4016 St. Martins Place. In granting
the motion to suppress, the trial court engaged in a de novo review, substituted its
judgment for that of the issuing magistrate and failed to give deference to the
9
OHIO FIRST DISTRICT COURT OF APPEALS
magistrate’s finding of probable cause. Therefore, the trial court erred in granting the
motion to suppress.
{¶25} The state also argues that the trial court erred in finding that the good-
faith exception to the exclusionary rule did not apply. See United States v. Leon, 468
U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Hampton, 1st Dist. Hamilton No. C-
080187, 2008-Ohio-6088, at ¶ 18. Because we have already determined that the
search of 4016 St. Martins Place was supported by probable cause, we need not address
this issue.
{¶26} In sum, we sustain the state’s assignment of error. We reverse the trial
court’s decision granting Lang’s motion to suppress and remand the cause to the trial
court for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
BERGERON, P.J., and KINSLEY, J., concur.
Please note:
The court has recorded its own entry this date.
10