[Cite as State v. Jones, 2013-Ohio-4915.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 99538



                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLANT

                                               vs.

                                       LAUREN JONES
                                                     DEFENDANT-APPELLEE




                                            JUDGMENT:
                                             AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-561064

         BEFORE: E.A. Gallagher, J., Rocco, P.J., and Blackmon, J.

         RELEASED AND JOURNALIZED:                   November 7, 2013
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor

By:    Mary Weston
       Kristen L. Sobieski
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Joseph C. Patituce
Megan M. Patituce
Jennifer Scott
Patituce & Associates, L.L.C.
26777 Lorain Road
Suite 708
North Olmsted, OH 44070

Reuben J. Sheperd
11510 Buckeye Road
Cleveland, OH 44104
EILEEN A. GALLAGHER, J.:

       {¶1} The state of Ohio appeals the decision of the trial court granting the

defendant-appellant’s motion to suppress.    The state argues that the trial court erred

when it concluded that a single trash pull did not supply sufficient probable cause to

support the issuance of a search warrant.     For the following reasons, we affirm the

decision of the trial court.

       {¶2} Cleveland police narcotics detective Matthew Baeppler learned from a

confidential reliable informant that a female named Lauren, whom the informant

described as African American and overweight, was manufacturing methamphetamine in

the Cleveland area.     Detective Baeppler also learned that Jennifer Chappel, known as

“Jen Jen,” cooks methamphetamine and that she had moved her cooking operation to

Rowley Avenue.

       {¶3} On December 4, 2011, a burglary was reported at 1116 Rowley Avenue.

Officers responded and arrested Ilya Shpilman, a person known to have involvement

with methamphetamine, in connection with the burglary.

       {¶4} Approximately three months after the burglary, Detective Baeppler and

other narcotics detectives were in the Cuyahoga County Justice Center on a matter

unrelated to the Rowley Avenue burglary.      While there, Detective Baeppler observed

Jennifer Chappel, who was known to him, sitting next to an overweight, black female

who had been speaking with an assistant county prosecutor.          Believing that this

unidentified female could be the “Lauren,” Detective Baeppler asked the prosecutor the
identity of the woman with Chappel.     The prosecutor informed Detective Baeppler that

the female sitting with Jennifer Chappel was Lauren Jones and that Jones lived at 1116

Rowley Avenue.     Jones was present at the Justice Center that day because she was the

victim of the December 4, 2011 burglary at her home.

       {¶5} Armed with Jones’ name, address and physical description, Detective

Baeppler and investigators decided to conduct a trash pull from the tree lawn at 1116

Rowley.    On March 22, 2012, the detectives collected the trash and recovered the

following: mail addressed to Jones at 1116 Rowley, empty chemical bottles, plastic

tubing, used coffee filters and a plastic bottle containing methamphetamine oil. Field

tests conducted on the items yielded positive results for methamphetamine.

Immediately after conducting the trash pull, Detective Baeppler drafted a search warrant

which was signed by a judge.

       {¶6} On March 23, 2012, the officers executed the search warrant and recovered

several dishes with methamphetamine residue, white pills, coffee filters with

methamphetamine       residue,   a    scale      with   methamphetamine      residue    and

methamphetamine.      The Cuyahoga County Grand Jury indicted Jones with illegal

manufacture of drugs, assembly or possession of chemicals used to manufacture a

controlled substance, two counts of trafficking, three counts of drug possession and

possessing criminal tools. Jones filed a motion to suppress the evidence in which she

challenged the validity of the search warrant.    The trial court conducted a hearing on the

motion and, on February 11, 2013, the court granted the suppression concluding that the
search warrant was not supported by probable cause.

       {¶7} The state appeals, raising the following assignment of error:

       The trial court committed reversible error in granting defendant’s motion to
       suppress.

       {¶8} In State v. Preztak, 181 Ohio App.3d 106, 2009-Ohio-621, 907 N.E.2d

1254 (8th Dist.), this court outlined the standard of review on a motion to suppress.

       Our standard of review with respect to motions to suppress is whether the
       trial court’s findings are supported by competent, credible evidence. See
       State v. Winand, 116 Ohio App.3d 286, 688 N.E.2d 9 (7th Dist. 1996),
       citing City of Tallmadge v. McCoy, 96 Ohio App.3d 604, 645 N.E.2d 802
       (9th Dist. 1994). * * * This is the appropriate standard because “in a
       hearing on a motion to suppress evidence, the trial court assumes the role
       of trier of facts and is in the best position to resolve questions of fact and
       evaluate the credibility of witnesses.” State v. Hopfer, 112 Ohio App.3d
       521, 679 N.E.2d 321 (2d Dist.1996).

       {¶9} Once we accept those facts as true, however, we must independently

determine, as a matter of law and without deference to the trial court’s conclusion,

whether the trial court met the applicable legal standard. See also State v. Lloyd, 126

Ohio App.3d 95, 709 N.E.2d 913 (7th Dist.1998); State v. Cruz, 8th Dist. Cuyahoga No.

98264, 2013-Ohio-1889.

       {¶10}   The Fourth Amendment to the United States Constitution, applied to the

states via the Fourteenth Amendment, reads in part:

       [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 things to be seized.

       {¶11}   In applying this amendment to the issues of the case, we are guided by
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and State v.

George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), in determining whether the search

warrant is valid. As such, we have held that:

       Although the United States Constitution requires search warrants to issue
       only upon probable cause, Gates requires a reviewing court to defer to an
       issuing judge’s discretion when deciding whether a warrant was validly
       issued. Thus, even though the existence of probable cause is a legal
       question to be determined on the historical facts presented, we will uphold
       the warrant if the issuing judge had a substantial basis for believing that
       probable cause existed.

State v. Reniff, 146 Ohio App.3d 749, 2001-Ohio-4353, 768 N.E.2d 667 (8th Dist.).

       {¶12}   A reviewing court affords great deference to a judge’s determination of

the existence of probable cause to support the issuance of a search warrant. State v.

Garner, 74 Ohio St.3d 49, 1995-Ohio-168, 656 N.E.2d 623. Such a determination

should not be set aside unless it was arbitrarily exercised.   See United States v. Spikes,

158 F.3d 913 (4th Cir.1999), certiorari denied.

       {¶13}   In this case, the trial court ruled that the single trash pull that immediately

preceded the issuance of the search warrant was insufficient to establish probable cause.

The court noted the following:

       There was no evidence that [Jennifer] Chappell was ever seen at the 1116
       Rowley address, that any controlled buys were made, that any sustained
       surveillance resulted in any unusual activity associated with a drug house,
       that the house was in a high drug crime area or that numerous people were
       entering and leaving the house for short periods.

       {¶14}   Further, the court stated that

       [A]dditional investigation including, multiple trash pulls over a period of
       time; surveillance, the details of which are set forth in an affidavit that
       gives facts of usage, trafficking and other circumstances giving rise of drug
       activity, controlled buys, observation of CRI from inside the house etc.,
       was necessary for probable cause to be established — one trash pull is not
       necessarily sufficient. The detective should have taken additional steps,
       instead of cutting off the investigation prematurely.

       {¶15}   We see no reason to conclude otherwise.        In State v. Weimer, 8th Dist.

Cuyahoga No. 92094, 2009-Ohio-4983, this court analyzed a single trash pull of a Euclid

residence that revealed evidence of recent drug activity.               The court, while

acknowledging the legality of the trash pull, noted that the discovery of the discarded

contraband must be viewed in isolation. Specifically, the court stated that when viewed

in isolation, “it [did] not necessarily render the continued presence of suspected cocaine

in her home probable, and [did] not, of itself, give rise to probable cause to issue a search

warrant.”   See also United States v. Elliot, 576 F.Supp. 1579 (S.D. Ohio 1984).

       {¶16}    This court, in reaching its decision, acknowledged the line of cases

upholding warrants based upon evidence garnered from single trash pulls.            Weimer.

This court noted that in those cases, the facts underlying probable cause were much

stronger and included extensive and continuous surveillance by police and heavy foot

traffic to and from the known target residence of the suspected drug dealer that is

indicative of drug transactions.   Id.; see also State v. Williams, 8th Dist. Cuyahoga No.

98100, 2013-Ohio-368.

       {¶17}   In the present case, the only evidence that Jones was involved in illegal

drug activity were reports of a woman named Lauren “cooking meth on Rowley,” that

Jones matched the vague description of an overweight African American female and the
evidence seized from a single trash pull.       The contraband recovered from the trash,

while indicative of recent criminal activity, does not necessarily render the continued

presence of methamphetamine in her home probable.              See Weimer, Williams.    We

agree with the trial court’s conclusion that this, without more, is insufficient to support

the issuance of a warrant.

       {¶18}    In the present case, the trial court granted Jones’ motion to suppress

because it concluded the single trash pull failed to provide sufficient probable cause to

support the issuance of a search warrant.       Based on the facts and case law outlined

above, we hold that the trial court’s conclusion was supported by competent, credible

evidence and that the trial court correctly applied the legal standard.    Thus, we overrule

the state’s sole assignment of error and affirm the decision of the trial court.

       {¶19}    The judgment of the trial court is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said lower court to carry this

judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE
KENNETH A. ROCCO, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
