[Cite as State v. Leavell, 2016-Ohio-5275.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                        ERIE COUNTY


State of Ohio                                     Court of Appeals Nos. E-15-030
                                                                        E-15-031
        Appellee
                                                  Trial Court Nos. 2013-CR-344
v.                                                                 2014-CR-389

Douglas Leavell                                   DECISION AND JUDGMENT

        Appellant                                 Decided: August 5, 2016

                                              *****

        Dean Holman, Special Prosecuting Attorney, and Matthew A.
        Kern, Assistant Special Prosecuting Attorney, for appellee.

        Loretta Riddle, for appellant.

                                              *****

        YARBROUGH, J.

        {¶ 1} Appellant, Douglas Leavell, appeals his conviction in the Erie County Court

of Common Pleas following his plea of no contest to five counts of trafficking in heroin

in violation of R.C. 2925.03(A)(1) and (C)(6)(b), felonies of the fourth degree, two

counts of trafficking in heroin in violation of R.C. 2925.03(A)(1) and (C)(6)(a), felonies
of the fifth degree, one count of possession of heroin in violation of R.C. 2925.11(A) and

(C)(6)(a), a felony of the fifth degree, one count of possession of cocaine in violation of

R.C. 2925.11(A) and (C)(4)(a), a felony of the fifth degree, and one count of having a

weapon under disability in violation of R.C. 2923.13(A)(3), a felony of the third degree.

For the reasons that follow, we affirm.

                          I. Facts and Procedural Background

       {¶ 2} This matter concerns the validity of a search warrant that was executed at

appellant’s residence located at 126 W. Parish Street, Sandusky, Ohio. The following

assertions are contained in the affidavit in support of the search warrant, which was

admitted into evidence during the trial court’s April 16, 2015 hearing on appellant’s

motion to suppress.

       {¶ 3} Detective Adam West of the Sandusky Police Department filed the affidavit

in support of the application for a search warrant. In his affidavit, West stated that he met

with a confidential informant (“CI1”) who had information that he or she could purchase

heroin from appellant. West described CI1 as reliable, having been involved in over 15

controlled drug buys. West arranged for CI1 to purchase heroin from appellant on

October 18, 2013, November 15, 2013, and February 27, 2014, all from appellant’s

address at 1700 S. Forest Drive, Sandusky, Ohio. Each of the controlled buys were

successfully completed.

       {¶ 4} West also stated in his affidavit that he met with a second confidential

informant (“CI2”) who stated that he or she could purchase heroin from appellant. West




2.
stated that CI2 had been involved in three prior controlled drug buys with his agency.

CI2 executed three separate controlled buys of heroin from appellant on April 28, 2014,

May 1, 2014, and May 13, 2014. West stated in regards to the April 28, 2014, and

May 13, 2014 controlled buys that an officer observed appellant return to his residence at

126 W. Parish Street, Sandusky, Ohio once the deals were complete.

       {¶ 5} Finally, West testified in his affidavit that a third confidential informant

(“CI3”) offered that he or she could purchase heroin from appellant. West stated that CI3

had not been tested since he or she had not previously conducted a controlled buy with

the Sandusky Police Department. Nevertheless, a controlled buy was executed, during

which West observed appellant leave his residence at 126 W. Parish Street on foot, walk

to the site of the transaction, and complete the sale. A different officer observed

appellant return to his residence on foot after the transaction.

       {¶ 6} Following the suppression hearing, the trial court denied appellant’s motion

to suppress. Appellant subsequently entered into an agreement to plead no contest to the

crimes above. The trial court accepted the agreement, found appellant guilty, and

sentenced him to the agreed upon term of 59 months in prison.

                                 II. Assignment of Error

       {¶ 7} Appellant has timely appealed his conviction, and now asserts one

assignment of error for our review:

              1. The trial court erred when it denied appellant’s motion to

       suppress the evidence when it found the search warrant to be valid.




3.
                                         III. Analysis

       {¶ 8} Appellate review of a trial court’s ruling on a motion to suppress presents

mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, 797 N.E.2d 71, ¶ 8. “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.) Id.

       {¶ 9} This matter calls us to review the sufficiency of West’s affidavit to establish

probable cause in support of the search warrant issued by a judge of the Sandusky

Municipal Court. In articulating the applicable legal standard, the Ohio Supreme Court

has explained that “[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.” State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640

(1989), paragraph one of the syllabus.

              [T]he 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, trial and appellate courts should accord great




4.
       deference to the magistrate’s determination of probable cause, and doubtful

       or marginal cases in this area should be resolved in favor of upholding the

       warrant. Id. at paragraph two of the syllabus.

       {¶ 10} In his appellate brief, appellant presents three arguments in furtherance of

his conclusion that West’s affidavit was insufficient to demonstrate probable cause.

       {¶ 11} First, appellant contends that the information in the affidavit was stale. See

State v. Young, 6th Dist. Erie No. E-13-011, 2015-Ohio-398, ¶ 46 (“Probable cause must

be determined as of the date the warrant is requested, thus the facts presented must be

relatively close in time to the date of the affidavit to be of value in making the probable

cause determination.”). As support, appellant cites the reference to a conviction from

2003 and also the information relative to CI1, which was from several months before

when the warrant was issued, and which pertained to a different address. Appellant

further points out that a search at the previous address based on the information from CI1

did not lead to the discovery of any contraband.

       {¶ 12} We find appellant’s first argument to be without merit. Although the

controlled drug buys performed by CI1 may have occurred several months prior to the

application for the warrant, appellant fails to acknowledge the drug buys performed by

CI2 and CI3, two of which occurred on the day that West applied for the warrant. Thus,

we cannot conclude that the warrant was issued on stale information.

       {¶ 13} Appellant next asserts that the affidavit contained insufficient information

regarding the credibility and reliability of any of the confidential informants. Appellant




5.
argues that CI3 and CI2 have not been sufficiently tested and proven reliable, and that

while CI1 has performed numerous controlled buys in the past, the previous warrant

based on the information from CI1 did not lead to the discovery of any contraband, and

thus CI1 is not reliable. Moreover, appellant argues that the affidavit contains no

information as to how the confidential informants knew appellant or knew that they could

purchase drugs from appellant.

        {¶ 14} We find appellant’s arguments concerning the reliability of the confidential

informants to be misplaced. Appellant recognizes that a magistrate may rely on the

hearsay statements of a confidential informant “only if there is a substantial basis for

crediting the statements.” Young, 6th Dist. Erie No. E-13-011, 2015-Ohio-398, at ¶ 47.

“[T]hat substantial basis must include (1) information about the facts upon which the

informant based his allegations of criminal activity, and (2) some of the underlying

circumstances from which the officer concluded that the informant was credible or his

information reliable.” Id., quoting State v. Gill, 49 Ohio St.2d 177, 179, 360 N.E.2d 693

(1977). However, in this case, the magistrate is not relying on hearsay statements from

the confidential informants, but instead is relying on West’s personal observation of the

informants’ purchase of drugs from appellant. Thus, neither the credibility of the

informants nor the manner in which they came to know that they could purchase drugs

from appellant is pertinent when the affiant orchestrated and observed the controlled drug

buys.




6.
       {¶ 15} Finally, appellant argues that there is nothing in the affidavit linking any

illegal activity to the residence at 126 W. Parish Street. Appellant, however, again

ignores statements in the affidavit that on three separate occasions, including the two that

occurred on the date the warrant was issued, appellant was observed leaving the residence

to go to the drug sale, returning to the residence after the drug sale, or both. Thus, there

is sufficient information in the affidavit to conclude that a fair probability existed that

contraband or evidence of a crime would be found at 126 W. Parish Street.

       {¶ 16} Therefore, because the affidavit provided a substantial basis for the

magistrate to conclude that probable cause existed to issue the warrant, we hold that the

trial court did not err when it denied appellant’s motion to suppress.

       {¶ 17} Accordingly, appellant’s assignment of error is not well-taken.

                                       IV. Conclusion

       {¶ 18} For the foregoing reasons, the judgment of the Erie County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.


                                                                          Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




7.
                                                                     State v. Leavell
                                                                     C.A. Nos. E-15-030
                                                                                E-15-031




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Thomas J. Osowik, J.
                                              _______________________________
Stephen A. Yarbrough, J.                                  JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




8.
