[Cite as State v. Poff, 2013-Ohio-5820.]


                                    IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :        OPINION

                 Plaintiff-Appellee,            :
                                                         CASE NO. 2013-A-0010
        - vs -                                  :

DANIEL S. POFF,                                 :

                 Defendant-Appellant.           :


Criminal Appeal from the Ashtabula County Court of Common Pleas.
Case No. 2012 CR 095.

Judgment: Affirmed.


Thomas L. Sartini, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).

Anna Markovich, 18975 Villaview Road, Suite 3, Cleveland, OH                  44119 (For
Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Daniel S. Poff, appeals his January 30, 2013 convictions in the

Ashtabula County Court of Common Pleas for illegal manufacture of drugs in violation of

R.C. 2925.04(A)(C)(3)(a), a felony of the second degree, and illegal assembly or

possession of chemicals for the manufacture of drugs in violation of R.C. 2925.041(A), a

felony of the third degree. Appellant’s first two assignments of error concern the trial

court’s denial of his suppression motion. We find no error in the trial court’s decision to
deny the suppression motion. In his third assignment of error, appellant argues that his

convictions were against the manifest weight of the evidence. However, there is ample

evidence in the record to support appellant’s convictions. Thus, we affirm appellant’s

convictions.

       {¶2}    In its judgment entry dated October 11, 2012, the trial court denied

appellant’s motion to suppress.      With respect to the magistrate’s determination of

probable cause and issuance of a search warrant, the trial court found the following

facts, which are supported in the record.

       {¶3}    On February 4, 2012, Patrolman Distelrath (“Distelrath”) of the Conneaut

Police Department saw Andrew Slapnicker’s (“Slapnicker”) car parked in what he knew

to be appellant’s driveway. Slapnicker was known by Distelrath to have purchased

pseudoephedrine in the past for use in the production of methamphetamine. Distelrath

knew that appellant had prior convictions for possession of methamphetamine.

Distelrath decided to observe Slapnicker’s activities.

       {¶4}    Slapnicker and a second man, Jared King, exited appellant’s home,

entered Slapnicker’s car, and began to drive away. Distelrath, in his capacity as a

police officer, was also familiar with King. Distelrath followed Slapnicker and King and

conducted a traffic stop when their vehicle drifted left of center. Slapnicker lied to

Distelrath about where he had come from and where he was going. Slapnicker, who

was noticeably nervous, consented to a search of the vehicle. He indicated that no

contraband was present but that, if there was any, it would be his.

       {¶5}    Distelrath patted down both Slapnicker and King but found no contraband

on either person. The vehicle search revealed a scale, a box of cold packs, and a clear




                                             2
plastic bag with white residue on it. Distelrath knew these items to be associated with

the manufacture, use, and sale of methamphetamine. Distelrath Mirandized Slapnicker

and permitted King to leave the scene.

        {¶6}   Slapnicker then agreed to speak with Distelrath. Slapnicker stated that

while in appellant’s home, he had seen what he thought was heroin on the table and

equipment and chemicals used in the production of methamphetamine in a back room.

Slapnicker further stated that King had purchased either methamphetamine or heroin at

appellant’s house and that King had concealed it inside his pants. Distelrath testified

that based on his familiarity and past dealings with those concerned, he believed this

information to be accurate despite Slapnicker’s earlier lies.

        {¶7}   The affidavit in support of the issuance of a search warrant sets forth

substantially similar facts.    However, the affidavit differs from the above in two

noteworthy respects. First, the affidavit does not state that Slapnicker initially lied to

Distelrath. Second, the affidavit avers that Slapnicker told Distelrath he had given King

a ride to appellant’s home for the purpose of purchasing drugs. Distelrath testified at

the suppression hearing that this portion of the affidavit was in error. His testimony was

that Slapnicker told him that he did not know why King wanted to go to appellant’s

home.

        {¶8}   The trial court made the following findings of fact with regard to other

inaccuracies contained in Distelrath’s affidavit. First, there is an incorrect date: it reads

February 5, when it should be February 4.          Second, the color of the plastic bag

recovered from Slapnicker’s car is stated to be white, but the bag was clear. Third,

statements that Slapnicker actually made at the police station are attributed to his




                                             3
earlier conversation with Distelrath during the traffic stop. The trial court found these

errors inadvertent and immaterial.

       {¶9}   Contrary to appellant’s position, the trial court found that Slapnicker had

stated both that he gave King a ride to appellant’s home for the purpose of purchasing

drugs and that King did in fact purchase drugs there.           The trial court found these

statements were made at the police station rather than during the post-traffic stop

conversation. Assuming, arguendo, that Slapnicker had not made these statements,

the trial court nonetheless found there existed sufficient information to support the

issuance of a warrant.

       {¶10} The trial court did not find it significant that Distelrath declined to mention

in the affidavit that Slapnicker initially lied about where he had come from and where he

was going. During the suppression hearing, defense counsel argued that Slapnicker

could not reasonably be considered credible because he lied to Distelrath several times.

Distelrath testified that although he caught Slapnicker in several lies, he believed that

Slapnicker then decided to tell the truth. The record indicates Slapnicker later testified

he was afraid to tell the truth while King was still at the scene.

       {¶11} The trial court held:

              Based upon the totality of the circumstances—Slapnicker’s
              firsthand account, Distelrath’s prior knowledge of the parties, and
              Distelrath’s observations—there existed a sufficient basis for [the
              issuing judge] to believe that Slapnicker’s statements were true and
              that there was a fair possibility that methamphetamine labs would
              be found at [appellant’s] residence.

Thus, the highly incriminating evidence obtained during a search of appellant’s home

was not suppressed.

       {¶12} Appellant’s first assignment of error states:



                                              4
       {¶13} “In denying Appellant’s motion to suppress evidence the trial court abused

its discretion because it applied an incorrect legal standard.”

       {¶14} Crim.R. 41(C) sets forth the procedure and requirements for the issuance

of a search warrant. It provides, in relevant part:

              A warrant shall issue on either an affidavit or affidavits
              communicated to the judge by reliable electronic means
              establishing the grounds for issuing the warrant. The affidavit shall
              name or describe the person to be searched or particularly describe
              the place to be searched, name or describe the property to be
              searched for and seized, state substantially the offense in relation
              thereto, and state the factual basis for the affiant's belief that such
              property is there located.

              If the judge is satisfied that probable cause for the search exists, he
              shall issue a warrant * * *. The finding of probable cause may be
              based upon hearsay in whole or in part, provided there is a
              substantial basis for believing the source of the hearsay to be
              credible and for believing that there is a factual basis for the
              information furnished.

       {¶15} The Ohio Supreme Court has adopted the test set forth in Illinois v. Gates,

462 U.S. 213 (1983) for determining whether the issuance of a warrant was supported

by probable cause. State v. McDivitt, 11th Dist. Lake No. 2011-L-129, 2012-Ohio-2243,

¶18. As we stated in McDivitt:

              In determining the sufficiency of probable cause in an affidavit
              submitted in support of a search warrant, ‘[t]he task of the issuing
              magistrate is simply to make a practical, common-sense decision
              whether, given all the circumstances set forth in the affidavit before
              him, including the “veracity” and “basis of knowledge” of persons
              supplying hearsay information, there is a fair probability that
              contraband or evidence of a crime will be found in a particular
              place.’

Id. at ¶19, quoting State v. George, 45 Ohio St.3d 325 (1989), paragraph one of the

syllabus, quoting Illinois v. Gates, 462 U.S. 213, 238-239 (1983).




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       {¶16} In his first assignment of error, appellant avers the trial court’s judgment

demonstrates it “applied an incorrect legal standard” in ruling on his motion to suppress,

to wit: the trial court focused its inquiry on whether there were sufficient facts before the

issuing magistrate or judge upon which to believe Slapnicker’s statements, rather than

whether there was a fair probability the criminal activity was taking place inside

appellant’s home.

       {¶17} We review the trial court’s application of the law de novo. See McDivitt,

supra, at 14.   In this case, the trial court was faced with the question of whether

Slapnicker’s information was reliable. Without Slapnicker’s information, there was not

enough information to establish a fair probability that criminal activity was occurring

inside appellant’s home. Appellant’s argument suggests that by focusing its analysis on

the most crucial facts, a trial court errs in its application of the totality of the

circumstances standard.      We disagree.        The trial court specifically found both a

“sufficient basis for [the issuing judge] to believe [ ] Slapnicker’s statements” and “a fair

possibility that methamphetamine labs would be found at [appellant’s] residence.”

While this finding was based in large part on Slapnicker’s information, the court

specifically considered Distelrath’s knowledge of the parties, Distelrath’s observation of

the parties’ activities, and the contraband discovered in Slapnicker’s car. Thus, the trial

court correctly considered the totality of the circumstances and found a fair probability

that appellant’s home contained evidence of methamphetamine manufacturing, use,

and sale.

       {¶18} Appellant further argues that the trial court’s substitution of the words “fair

possibility” in place of the standard’s “fair probability” language indicates the trial court




                                             6
applied the standard appropriate in cases where reasonable suspicion, not probable

cause, is the issue. Thus, appellant argues, the trial court impermissibly employed a

lesser standard. This substitution, however, appears to be merely an oversight. The

trial court’s judgment entry cites to cases employing a fair probability standard and

quotes language from those cases, including the standard from State v. Nunez, 180

Ohio App.3d 189, 194 (6th Dist.2008), which indicates the application of a fair

probability standard. As a result, substitution of the word “possibility” for “probability”

appears to be a typographical mistake, not an attempt to substitute a lower standard.

       {¶19} The trial court’s factual findings are supported by the record. Considering

the totality of the circumstances—Distelrath’s knowledge of the parties, his

observations, and Slapnicker’s statements—there was a fair probability that a search of

appellant’s home      would   reveal drugs and equipment used            to manufacture

methamphetamine.

       {¶20} Appellant’s first assignment of error is without merit.

       {¶21} Appellant’s second assignment of error states:

       {¶22} “The trial court erred in denying appellant’s motion to suppress evidence

because the affidavit was not sufficient to establish probable cause for the research [sic]

warrant and could not establish grounds for a good-faith exception to the probable

cause requirement.”

       {¶23} Under his second assignment of error, appellant makes two related

arguments regarding the search warrant. First, appellant argues that the warrant was

issued based on insufficient evidence to support a finding of probable cause. Second,

appellant argues that the good-faith exception should not apply because the affidavit




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supporting the warrant application omitted important information relevant to the

reliability of the informant and attributed to the informant an important statement he

never made.

       {¶24} Appellate review of a trial court’s decision on a motion to suppress

involves issues of both law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, ¶8. Thus, the trial court acts as trier of fact in a suppression hearing and is in the

best position to weigh the evidence and evaluate the credibility of the witnesses. Id.,

citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). On review, we rely on the trial

court’s finding of facts, provided such findings are based on competent, credible

evidence in the record. Id., citing State v. Fanning, 1 Ohio St.3d 19, 20 (1982). If the

trial court’s factual findings are supported by the record, we engage in a second step of

analysis consisting of a de novo review of the trial court’s application of the law to the

facts. State v. Lett, 11th Dist. Trumbull No. 2008-T-0116, 2009-Ohio-2796, ¶3, citing

State v. Djisheff, 11th Dist. Trumbull No. 2005-T-0001, 2006-Ohio-6201, ¶9.

       {¶25} A magistrate’s finding of probable cause must be afforded great

deference. McDivitt, supra, at ¶20, citing State v. George, 45 Ohio St.3d 325, 330

(1989). Neither the lower court nor the appellate court should engage in a de novo

review of the sufficiency of probable cause supporting the affidavit. Id. Instead, the role

of a reviewing court is merely to “ensure that the magistrate had a ‘substantial basis’ for

concluding that probable cause existed to issue a warrant.” Id. Therefore, “doubtful or

marginal cases in this area should be resolved in favor of upholding the warrant.” Id.

Thus, our task is to determine whether the facts set forth in the affidavit demonstrate a




                                             8
substantial basis upon which the magistrate could find a fair probability that contraband

was present or that criminal activity was occurring inside appellant’s home.

      {¶26} The basis set forth in the affidavit for a warrant to search appellant’s home

included the following facts, which are supported in the record: (1) Distelrath knew that

Slapnicker was known to purchase pseudoephedrine for use in the production of

methamphetamine;      (2)   appellant   and       his   wife   were   known    abusers   of

methamphetamine; (3) Slapnicker and King were at appellant’s home shortly before

Distelrath stopped them; (4) Slapnicker behaved nervously when stopped; (5) Distelrath

discovered items consistent with the sale and use of methamphetamine in Slapnicker’s

vehicle; (6) Slapnicker stated the purpose for the visit was that King wished to purchase

drugs and that King had purchased either methamphetamine or heroin; and (7)

Slapnicker had seen heroin and equipment and chemicals used in the production of

methamphetamine and on the table in appellant’s home.

      {¶27} With regard to the incorrect statement concerning the purpose of

Slapnicker and King’s visit to appellant’s home, we note the trial court found this

statement was made before the affidavit was prepared, though not at the time indicated

in the affidavit. Slapnicker lied to Distelrath about where he was coming from and

where he was going and about the presence of contraband in his car; however, he later

acknowledged those misstatements and gave a credible explanation.

      {¶28} Appellant claims that Slapnicker lied about King having purchased drugs

at appellant’s home, because Distelrath did not find any drugs on King. It is not clear

that Slapnicker lied about King purchasing drugs. Slapnicker did not tell Distelrath that

King had purchased drugs until after King had been released from the scene. King was




                                              9
frisked and asked to empty his pockets, but there is no indication in the record that a

thorough search was performed.        Slapnicker indicated that King had placed the

purchased drugs inside his pants, not in his pockets. Distelrath testified that King was

moving in a furtive manner after the car had been stopped. Thus, it is reasonable for

the trial court to have concluded that King purchased drugs, placed them inside his

pants when the car was pulled over, and the drugs escaped detection because

Distelrath did not search inside King’s pants before King was released.

      {¶29} Appellant has drawn our attention to the inaccuracies in Slapnicker’s

account because Slapnicker’s statements as an informant were crucial to the finding of

probable cause. Appellant essentially argues that Slapnicker is a liar whose statements

are not entitled to belief. Thus, we address Slapnicker’s status and credibility as an

informant.   Courts have generally recognized three categories of informant: the

anonymous informant, the known informant, and the identified citizen informant. See

Maumee v. Weisner, 87 Ohio St.3d 295, 300 (1999).

      {¶30} An anonymous informant generally cannot be presumed reliable, as the

reliability of the source or the basis of his knowledge cannot be determined; thus, before

acting on information from an anonymous informant, the police must corroborate the

information. Id., citing Alabama v. White, 496 U.S. 325, 329 (1990). An identified

citizen informant, who is the victim or witness of a crime, is presumed reliable. State v.

Livengood, 11th Dist. Lake No. 2002-L-044, 2003-Ohio-1208, ¶11.                    “If an

unquestionably honest citizen comes forward with a report of criminal activity—which if

fabricated would subject him to criminal liability—we have found rigorous scrutiny of the

basis of his knowledge unnecessary.” Illinois v. Gates, supra, at 233-234. Finally,




                                           10
somewhere in between is the known informant: typically a member of the criminal

community, but whose identity is known to the police and who has provided reliable

information in the past. See Maumee, supra, at 300.

       {¶31} The parties disagree as to how Slapnicker should be classified. The state

characterizes Slapnicker as an identified citizen informant, while appellant urges that,

under the circumstances, he is more akin to a criminal or “known” informant. Slapnicker

does not fit entirely into only one of the categories. First, Slapnicker was not a typical

identified citizen informant. Though his identity was known to the police, Slapnicker

neither came forward voluntarily to report crime out of a sense of civic duty nor as a

victim reporting a crime. Slapnicker offered information to a police officer in order to

benefit himself regarding his own criminal activities. Second, Slapnicker was not an

anonymous informant. The information he offered was given to the police in a face to

face encounter. Third, Slapnicker also does not fit neatly into the “known informant”

category.    Distelrath testified that Slapnicker is part of the criminal community, as

Slapnicker is known to purchase pseudoephedrine for use in the production of

methamphetamine.         However, there was no indication in Distelrath’s affidavit that

Slapnicker had provided reliable information in the past. Instead, Distelrath testified that

he believed Slapnicker’s statements regarding criminal activities taking place at

appellant’s home because Distelrath saw Slapnicker at the home minutes before the

statements were made. That fact supports Slapnicker’s basis of knowledge, but says

little about his veracity.

       {¶32} Nevertheless, the issuing judge had a sufficient basis upon which to

assess Slapnicker’s veracity. Distelrath saw Slapnicker leave appellant’s house shortly




                                            11
before Distelrath pulled Slapnicker over. The affidavit reflects Distelrath’s familiarity

with Slapnicker, King, appellant, and appellant’s wife.         Distelrath was aware that

Slapnicker was a known purchaser of pseudoephedrine for use in the production of

methamphetamine,          that   appellant   had   prior   arrests   and   convictions    for

methamphetamine related offenses, and that appellant’s wife was a known

methamphetamine           abuser.     Distelrath   observed    materials   consistent    with

methamphetamine use and sale in Slapnicker’s car and used this evidence to question

Slapnicker about his recent activities. While we find this a difficult case because the

affidavit did not contain anything specific to support Slapnicker’s veracity, we believe it

is appropriate here to defer to the issuing authority’s judgment. McDivitt, supra, at ¶20.

       {¶33} Appellant next argues that, assuming the affidavit was not supported by

probable cause, the good-faith exception should not apply. This argument is rendered

moot by our holding that the warrant was supported by probable cause.

       {¶34} Under these circumstances, the trial court did not err by admitting

evidence obtained in the search of appellant’s home. Appellant’s second assignment of

error is without merit.

       {¶35} Appellant’s third assignment of error states:

       {¶36} “The trial court’s verdict that appellant was guilty of illegal manufacture of

drugs and illegal assembly or possession of chemicals for the manufacture of drugs is

against the manifest weight of the evidence in violation of Article IV, Section 3, of the

Ohio Constitution.”

       {¶37} In his third assignment of error, appellant argues that his convictions were

against the manifest weight of the evidence. “To determine whether a verdict is against




                                              12
the manifest weight of the evidence, a reviewing court must consider the weight of the

evidence, including the credibility of the witnesses and all reasonable inferences, to

determine whether the trier of fact ‘lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered.’” Willoughby

Hills v. Lyons, 11th Dist. Lake No. 2012-L-136, 2013-Ohio-4099, ¶18, citing State v.

Thompkins, 78 Ohio St.3d 380, 387 (1997). In weighing the evidence in a criminal

case, “the appellate court must defer to the factual findings of the trier of fact regarding

the weight to be given the evidence and credibility of the witnesses.” Id., citing State v.

DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.

       {¶38} Appellant first argues that no evidence was adduced at trial to support a

finding of his actual or constructive possession of methamphetamine paraphernalia.

Second, appellant argues that nothing in the record indicates that appellant had

knowledge that any chemicals or equipment he possessed could be used to

manufacture methamphetamine. Finally, appellant argues that nothing in the record

supports a finding that he intended to use such chemicals or equipment in the

production of methamphetamine.

       {¶39} Contrary to appellant’s contentions, there is ample evidence in the record

to support the findings that appellant possessed methamphetamine paraphernalia, was

aware of the nature of that paraphernalia, and intended to use it to manufacture

methamphetamine. Appellant occupied the home in which such items were found and

was present when the search was conducted and the items discovered. Appellant has

previous arrests and convictions for methamphetamine related offenses. Slapnicker

testified that after he and King arrived at appellant’s house, King and appellant went into




                                            13
the back room to conduct a drug transaction.         Slapnicker testified that this room

contained equipment and chemicals used to manufacture methamphetamine.

Slapnicker testified that he saw appellant removing finished methamphetamine from a

coffee filter on which it had been left to dry. Furthermore, Slapnicker testified that he

supplied appellant with pseudoephedrine, a methamphetamine precursor, for the

purpose of methamphetamine manufacturing on several occasions in the past. Under

these circumstances, we hold that the jury did not “lose its way” or create a “manifest

miscarriage of justice” in finding that appellant had possession of equipment and

chemicals used in the manufacture of methamphetamine, was aware of the nature of

these items, and intended to use them to produce methamphetamine.             Thompkins,

supra, at 387.

      {¶40} The cases cited in support of appellant’s arguments, particularly those

related to the issue of possession, are readily distinguishable from the present matter.

      {¶41} Appellant’s reliance on State v. Haynes, 25 Ohio St.2d 264 (1971), is

misplaced. Haynes held that where drugs were discovered in a residence in which

others resided and in which the defendant had not occupied during the week preceding

the search, the mere fact that the defendant was the legal lessee of the premises was

insufficient to establish possession. In this case, appellant occupied the house at all

times relevant to the search. He was present when the search occurred, and he was

implicated by an informant. There is nothing in the record to suggest that appellant was

absent from his home for a lengthy period of time prior to the search.

      {¶42} Appellant’s reliance on State v. Swalley, 11th Dist. Ashtabula No. 2010-A-

0008, 2011-Ohio-2092, is similarly misplaced. In that case, which was reviewed for




                                           14
sufficiency of the evidence rather than manifest weight, the defendant “was not present

when the various items known to be associated with the manufacturing of

methamphetamine were found.”         Swalley at ¶67.     The items were not tested for

fingerprints, and the only evidence presented by the state “to support a finding of

constructive possession of the methamphetamine paraphernalia was [the defendant’s]

temporary occupation” of the living room couch on which many others stayed. Id. at

¶68. In this case, appellant was present when the methamphetamine paraphernalia

was found, and there is testimony in the record indicating that he was seen removing

the finished product from the coffee filters on which it had collected and dried.

Furthermore, appellant was not a temporary visitor, but in his own home.

      {¶43} State v. Johnson, 8th Dist. Cuyahoga No. 98245, 2013-Ohio-575, another

case cited by appellant, is also factually distinguishable. In Johnson, drug residue was

discovered in a safe, which was in the defendant’s basement under a pile of clutter. Id.

at ¶44. Others lived in the house and no evidence was adduced that the defendant

owned or had even been near the safe. Id. In this case, evidence of methamphetamine

use and production was scattered throughout the home; appellant was discovered in the

home, near the evidence; and witness testimony indicated that appellant was seen

removing the finished product from the coffee filters on which it had collected and dried.

      {¶44} Finally, appellant argues that we cannot credit Slapnicker’s testimony, as

he had already proven unreliable. On a manifest weight challenge, however, we must

defer to the fact finder’s factual determinations on the weight of evidence and credibility

of witnesses.   Thompkins, supra, at 387.        There was evidence presented that, if




                                            15
believed by the fact finder, supported a conclusion that appellant committed the

offenses for which he was found guilty.

      {¶45} Appellant’s third assignment of error is without merit.

      {¶46} For the foregoing reasons, we find that appellant’s assignments of error

are without merit. The judgment of the Ashtabula County Court of Common Pleas is

affirmed.



DIANE V. GRENDELL, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


                                ____________________


COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

      {¶47} I respectfully dissent.

      {¶48} In affirming the trial court’s judgment, the majority holds that the trial court

committed no error in denying appellant’s motion to suppress and that there is ample

evidence to support his convictions.      Because this writer believes that the search

warrant was defective, I would reverse and remand.

      {¶49} The Fourth Amendment to the United States Constitution grants

defendants the right “to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” This right has been incorporated against the

states through the Fourteenth Amendment and is reiterated by Article I, Section 10 of

the Ohio Constitution. It is well-established that “all evidence obtained by searches and

seizures in violation of the Constitution is, by that same authority, inadmissible in state




                                            16
court.” Mapp v. Ohio, 367 U.S. 643, 655 (1961). Stated differently, any evidence

seized pursuant to an invalid search warrant must be excluded at trial.         Franks v.

Delaware, 438 U.S. 154, 156 (1978).

       {¶50} In Franks, the United States Supreme Court enunciated a two-part test for

trial courts to use in evaluating claims of misleading statements contained in an

affidavit. This test, embraced by Ohio courts and the Sixth Circuit alike, is succinctly

stated as follows:

       {¶51} “‘(A) court considering whether to suppress evidence based on an

allegation that the underlying affidavit contained false statements must apply a two-part

test: (1) whether the defendant has proven by a preponderance of the evidence that the

affidavit contains deliberately or recklessly false statements and (2) whether the

affidavit, without the false statements (* * *) provides the requisite probable cause to

sustain the warrant.’” State v. Weimer, 8th Dist. Cuyahoga No. 92094, 2009-Ohio-4983,

¶32, quoting United States v. Charles, 138 F.3d 257, 263 (6th Cir.1998).

       {¶52} Stated differently, before considering whether probable cause existed to

issue a warrant, the court must strip the affidavit of any false statements and averments,

and layer in any material facts that were omitted but should have been included.

Franks, supra, at 171; Weimer, supra, at ¶21-22; State v. Sells, 2d Dist. Miami No.

2005-CA-8, 2006-Ohio-1859, ¶11. Only then, upon reconstructing the picture that the

affidavits should have painted, is the court to examine probable cause. Franks at 171-

172.

       {¶53} In this case, Patrolman Distelrath’s affidavit was not sufficient to establish

probable cause for the search warrant. The false statements made by Slapnicker call




                                            17
into question and affect his credibility.      Once Patrolman Distelrath realized that

Slapnicker gave untruthful answers to some of his inquiries, the officer should have

demonstrated in his affidavit why he had a reason to believe all of the other statements

made by Slapnicker. The officer also had a duty to read the affidavit before presenting

it to the judge to make sure that the affidavit provided correct information.

       {¶54} Patrolman Distelrath did not provide the judge with any grounds or

circumstances that Slapnicker’s information regarding appellant and the alleged

activities at appellant’s house were reliable. There was no basis in the affidavit to

indicate the informant’s credibility, honesty, or reliability. Slapnicker’s allegations were

unsupported by independent police investigation.          Thus, there was no sufficient

probable cause basis to believe that illegal substances or activities occurred at

appellant’s residence.

       {¶55} The totality of the circumstances demonstrates that Patrolman Distelrath’s

affidavit did not provide a sufficient basis for the judge to conclude that there was a fair

probability that contraband or evidence of a crime would be found in appellant’s

residence. The omitted facts and other misrepresentations contained in the affidavit did

not support a finding of probable cause nor meet a good faith exception to the probable

cause requirements.      Therefore, this writer believes that the trial court committed

reversible error in denying appellant’s motion to suppress. Thus, I would reverse the

trial court’s judgment and remand the matter for further proceedings.

       {¶56} Based on the foregoing, I dissent.




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