[Cite as State v. Navarro, 2016-Ohio-749.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-15-28

        v.

BRANDON L. NAVARRO,                                       OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 14-CR-0049

                                      Judgment Affirmed

                           Date of Decision: February 29, 2016




APPEARANCES:

        John M. Kahler, II for Appellant

        Brian O. Boos for Appellee
Case No. 13-15-28


ROGERS, J.

           {¶1} Defendant-Appellant, Brandon Navarro, appeals the judgment of the

Court of Common Pleas of Seneca County denying his motion to suppress

evidence seized during the execution of three search warrants. On appeal, Navarro

argues that his Fourth Amendment rights were violated insofar as the first and

second search warrants (1) were not supported by probable cause and (2) failed to

state with particularity the items to be seized. For the reasons that follow, we

affirm the judgment of the trial court.

           {¶2} On February 20, 2014, a Seneca County Grand Jury indicted Navarro

on one count of illegal cultivation of marihuana, with an attendant forfeiture

specification, in violation of R.C. 2925.04(A), a felony of the third degree; one

count of trafficking in marihuana, with an attendant forfeiture specification, in

violation of R.C. 2925.03(A)(2), a felony of the fourth degree; and one count of

possessing criminal tools in violation of R.C. 2923.24(A), a felony of the fifth

degree.       The indictment arose after authorities uncovered a marihuana grow

operation inside Navarro’s home in the summer of 20131

           {¶3} On April 20, 2015, Navarro filed a motion to suppress the evidence

underlying the indictment on the grounds that the affidavits in support of the

search warrants did not establish probable cause to believe that marihuana-related



1
    The record is unclear as to Navarro’s whereabouts between the summer of 2013 and February 2014.

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activity was occurring in the residence located at 129 Hale Drive (“the

Residence”).2

         {¶4} On May 11, 2015, the State filed its response arguing that the search

warrants’ affidavits established probable cause. The State added that it did not

intend to introduce evidence obtained in connection with the third search warrant

against Navarro because the item searched, a cell phone, belonged to a co-

defendant, Ryan Steward, and was only indicative of Steward’s drug-related

activity. To that end, the State argued that Navarro lacked standing to challenge

the third search warrant.

         {¶5} On June 16, 2015, Navarro filed a supplement to his motion to

suppress, and that same day, a hearing was held. No testimony was presented, but

the parties offered a copy of the three search warrants into evidence. The search

warrants contained the following information:

         {¶6} On July 9, 2013, Detective Gabriel Wedge of the Seneca County Drug

Task Force appeared before a Tiffin-Fostoria Municipal Court judge and obtained

a warrant for the use of a thermal imaging scanner at the Residence.

         {¶7} In support of the warrant application, Detective Wedge provided a

sworn affidavit containing the following information, in relevant part:


2
  The record is unclear as to Navarro’s whereabouts between February 2014 and January 2015. However,
in January 2015, the record indicates that the trial court received notification that Navarro had been recently
incarcerated at the Noble Correctional Institution on unrelated charges. Upon Navarro’s incarceration,
proceedings in the instant case resumed.

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      1. During my employment with the Fostoria Police Department,
      and as an agent with the Seneca County Drug Task Force –
      METRICH Enforcement Unit, I, along with other agents of the
      Seneca County Drug Task Force have received multiple complaints
      from citizen’s[sic] reporting suspected drug related activity going on
      in specific areas and/or streets throughout the City of Fostoria,
      Seneca County, Ohio specifically [the Residence] and involving a
      subject named [Navarro]. These complaints continue and are
      ongoing at the present time.

      2. On June 27, 2013, I received information from an anonymous
      person stating that [the Residence] was being used by [Navarro] to
      grow marijuana/cannabis. The anonymous person stated that the
      basement was full of marijuana/cannabis plants. The anonymous
      called[sic] stated the residence has a white truck and a black car in
      the driveway.

      ***

      5. In conducting surveillance at [the Residence], I have found that
      [the Residence] a brick two story, single unit dwelling, tan in color,
      with a covered porch on the north side of the residence bearing the
      black numerals “129” on the white porch over hang, with a detached,
      green in color garage. The residence is across from rail road tracks
      near the Rail Bar. I also observed in front of the residence a black
      Pontiac 4 door with Ohio registration DSX 1640 and a white truck in
      the driveway; however, the registration was not visible. All of my
      observations are consistent with the information received through
      the anonymous complaint in relation to [Navarro] and the residence.

      ***

      8. On June 27, 2013, by way of the rail road tracks, I attempted to
      get close to [the Residence] to attempt to see the license plate of the
      white truck; however due to darkness and lack of lighting in the area
      of the residence, I was unable to do so.

      9. While attempting to obtain the white truck’s registration, as
      said above, the wind was blowing from the south/south west, from
      the direction of the house into my face. I was then able to, based on

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       my training and experience as a police officer with the Fostoria
       Police Department and as a detective with the Seneca County Drug
       Task Force, METRICH Enforcement Unit, smell the distinct odor of
       fresh (unburnt) marijuana/cannabis.

       10. I also noted while doing surveillance of the residence, all the
       windows were covered or had the blinds pulled shut. Due to the
       location of the residence and the way the street is setup, it is very
       hard to make visual observation of the property for any further
       evidence without getting on the subject’s property.

June 16, 2015 Hrg., Court’s Ex. 1, p. 3-5.

       {¶8} The search warrant was executed later that day, and the results

revealed abnormal heat and surface temperatures emanating from the Residence.

       {¶9} Based on this information, on July 11, 2013, Detective Wedge

appeared before a Tiffin-Fostoria Municipal Court judge and obtained a warrant to

search the Residence for evidence relating to the cultivation and possession of

marihuana. The search warrant identified the following items to be seized:

       Any illegally possessed drugs or controlled substances, firearms,
       weapons, drug paraphernalia, photos depicting drug use or
       trafficking, money, money obtained by drug sales, records of drug
       sales, items used to prepare drugs for sale or shipment, containers,
       sales, lock boxes used to store drugs, documents to indicate
       possession or control of premises. Any computers, computer discs,
       televisions, DVD’s, DVD players, digital cameras, cell phones and
       any other electronic equipment with purpose to store data. Any
       other items or instrumentalities used to facilitate the cultivation of
       mari[h]uana, drug use, drug trafficking, or the crime under
       investigation.

June 16, 2015 Hrg., Court’s Ex. 2, p. 1.



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       {¶10} In support of the warrant application, Detective Wedge provided a

sworn affidavit containing the same information as the first warrant, with the

following additions, in relevant part:

       13. [On July 9, 2013], the Seneca County Drug Force–METRICH
       Enforcement Unit, along with the assistance from Officer Brandon
       Bell (a Certified Thermographer) of the Fostoria Police Department,
       utilized a Thermal Imaging Device on [the Residence]. Upon doing
       so, according to the Certified Thermographer, Officer Brandon Bell,
       [the Residence] was emitting from within the premises certain
       dissipating heat, surface temperature variable and thermal image
       information. The certain dissipating heat and surface temperature
       variables observed coming from the said residence is consistent with
       heat signatures involved in “indoor” marihuana[sic] growing
       operations and is coming from the basement area of the residence
       which is consistent with the anonymous complaint received.

       14. While viewing the said abnormalities in the dissipating heat
       and surface temperature of the said residence, I noted that where
       these abnormalities were appearing through the thermal imager,
       there was an air conditioner (on and running) in a window along the
       same wall. Any reasonable person would believe and understand
       that in an area of a residence where an air conditioner is on and
       running, emitting cold air, there should be no abnormal heat
       signature, or at the very least should show less heat than areas of the
       home where there is no air conditioners present.

       15. In accordance with the above said thermal imaging search
       warrant, certified thermographer, Officer Brandon Bell, viewed
       other residences to conduct thermal imaging scans of comparative
       structures for comparison purposes only.          While doing the
       comparison scans, Officer Bell noted there to be a noticeable
       difference in surface temperature while comparing [the Residence]
       to the other residences used for comparison purposes. Being that
       [the Residence] was showing a greater amount of dissipating heat,
       surface temperature (brighter illumination) than the other residences
       which were consistently showing very little or none (no
       illumination).

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       ***

       17. On July 11, 2013 at approximately [8:55 am], I spoke with the
       landowner of [the Residence], Michael Hammer. Mr. Hammer
       advised the tenant at [the Residence] is [Navarro]. Mr. Hammer
       advised [Navarro] is the only subject on the lease agreement.

June 16, 2015 Hrg., Court’s Ex. 2, p. 7-8.

       {¶11} The warrant was executed later that day, and a marihuana grow

operation was uncovered.

       {¶12} On July 17, 2013, Detective Wedge applied for a third warrant to

search a cell phone seized during the search of the Residence. The warrant was

issued and executed later that day, and the search revealed communications

indicative of Steward’s marihuana-related activity.

       {¶13} By entry dated June 22, 2015, the trial court denied Navarro’s motion

to suppress finding that probable cause existed to support the first search warrant,

and therefore, the subsequent warrants were supported by probable cause. In

doing so, the trial court noted that

       [a]lthough the Ohio Supreme Court has ruled that the odor of
       contraband if it is able to be identified by a qualified individual, is
       enough by itself to establish probable cause, this [c]ourt does not
       need to rely simply upon the identification by Detective Wedge, who
       is qualified to detect such an odor, the affidavit also includes
       numerous general complaints about drug activity at the residence, as
       well as a specific anonymous tip about marijuana being grown at the
       residence. That tip was further corroborated by Detective Wedge
       when he noted that the windows of the residence were covered or
       otherwise barred, and by the odor of marijuana he detected.

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(Docket No. 25, p. 4.)

       {¶14} On July 14, 2015, Navarro entered a plea of no contest to the

indictment, and the trial court entered a finding of guilt. Navarro was sentenced to

two years in prison, consecutive to Navarro’s earlier, unrelated sentence out of

Wood County.

       {¶15} It is from this judgment that Navarro appeals, presenting the

following assignments of error for our review.

                           Assignment of Error No. I

       THE TRIAL COURT ERRED WHEN IT OVERRULED THE
       MOTION TO SUPPRESS EVIDENCE FOUND IN THE
       SEARCHES OF THE RESIDENCE BECAUSE THE
       AFFIDAVITS DID NOT CONTAIN INFORMATION
       SUFFICIENT TO ESTABLISH PROBABLE CAUSE FOR
       ISSUANCE OF THE SEARCH WARRANT.

                          Assignment of Error No. II

       THE TRIAL COURT ERRED WHEN IT OVERRULED THE
       MOTION TO SUPPRESS EVIDENCE FOUND IN THE
       SEARCHES OF THE RESIDENCE BECAUSE THE
       SEARCH WARRANTS’ DESCRIPTION OF ITEMS TO BE
       SEIZED WAS INSUFFICIENT.

                         Assignment of Error No. I

      {¶16} In his first assignment of error, Navarro argues that the trial court

erred in denying his motion to suppress evidence seized in connection with the

execution of the first two search warrants. Specifically, Navarro claims that the


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affidavit in support of the first search warrant did not establish probable cause to

believe that marihuana-related activity was occurring in the Residence, and

therefore, both the first and second search warrants are invalid. We disagree.

       {¶17} “Appellate review of a decision on a motion to suppress presents a

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

Ohio-5372, ¶ 8. The trial court serves as the trier of fact and is the primary judge

of the credibility of the witnesses and the weight to be given to the evidence

presented.   State v. Johnson, 137 Ohio App.3d 847, 850 (12th Dist. 2000).

Therefore, when an appellate court reviews a trial court’s ruling on a motion to

suppress, it must accept the trial court’s findings of facts so long as they are

supported by competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71,

2006-Ohio-3665, ¶ 100. The appellate court must then review the application of

the law to the facts de novo. Burnside at ¶ 8.

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

to the states through the Fourteenth Amendment, provides that “[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.”

Article I, Section 14 of the Ohio Constitution contains a similar provision.


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       {¶19} Probable cause is a lesser standard of proof than that required for a

conviction, such as proof beyond a reasonable doubt or by a preponderance of the

evidence. State v. Young, 146 Ohio App.3d 245, 254 (11th Dist.2001), citing State

v. George, 45 Ohio St.3d 325, 329 (1989). Probable cause only requires the

existence of circumstances that warrant suspicion; thus, “the standard

for probable cause requires only a showing that a probability of criminal activity

exists, not a prima facie showing of criminal activity.” (Emphasis sic.) Young at

254, citing George at 329.

       {¶20} When evaluating an affidavit for the sufficiency of probable cause,

the issuing magistrate must apply a totality-of-the-circumstances test. George at

paragraph one of the syllabus, citing Illinois v. Gates, 462 U.S. 213, 238-239, 103

S.Ct. 2317, 76 L.Ed.2d 527 (1983). On review, neither the trial court nor an

appellate court should substitute its judgment for that of the magistrate. George at

paragraph two of the syllabus, citing Gates. Rather, a reviewing court should

“accord great deference to the magistrate's determination of probable cause” and

focus its inquiry on whether the magistrate had “a substantial basis for concluding

that probable cause existed.” Id. “[D]oubtful or marginal cases in this area should

be resolved in favor of upholding the warrant.” Id.

       {¶21} An anonymous tip can establish probable cause, depending on the

totality of the circumstances.    Gates at 241–44.      Under the totality of the


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circumstances analysis, the degree to which the anonymous tip was corroborated

or supplemented by independent police investigation is of “significant value.” Id.

at paragraph four of the syllabus.

       {¶22} Here, the relevant inquiry is whether Detective Wedge’s affidavit in

support of the first search warrant application established a substantial basis to

conclude that there was probable cause to believe that marihuana-related activity

was occurring in the Residence. See State v. Leibold, 2d Dist. Montgomery No.

25124, 2013-Ohio-1371, ¶ 31 (A probable cause inquiry is generally confined to

the four corners of the affidavit.). Given the nexus between the first and second

search warrant, if the first search warrant was supported by probable cause, it

logically follows that the second search warrant was supported by probable cause.

       {¶23} In the first affidavit, Detective Wedge stated that he received an

anonymous tip that the Residence was being used by Navarro to grow marihuana

and that the Residence had a white truck and black car in the driveway. This was

not the first time Detective Wedge had received reports of illegal activity at the

Residence.

       {¶24} Standing alone, the anonymous tip did not provide an adequate basis

for a probable cause determination. The anonymous tip provided virtually nothing

from which one might conclude that the anonymous informant was “either honest

or his information reliable”; likewise, the anonymous tip gave no indication of the


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basis for the anonymous informant’s claim regarding Navarro’s marihuana grow

operation. Gates, 462 U.S. at 227.

       {¶25} After receiving the anonymous tip, Detective Wedge visited the

Residence where he observed two vehicles in the driveway: a white truck and a

black sedan. He further noted that all the windows were covered or had the blinds

pulled shut. At that point, something more was still required to establish probable

cause to believe that marihuana-related activity was occurring in the Residence;

the fact that the anonymous informant described the vehicles in the driveway gave

no indication of the basis for the anonymous informant’s claim regarding

Navarro’s marihuana grow operation.

       {¶26} However, Detective Wedge stated that while attempting to obtain the

white truck’s registration “by way of the rail road [sic] tracks,” the wind blew

from the direction of the Residence, and as a result, he smelled the distinct odor of

fresh, unburnt marihuana. June 16, 2015 Hrg., Court’s Ex. 1, p. 4. He added that

he was familiar with the smell of fresh, unburnt marihuana based on his education

and experience.     The Ohio Supreme Court has found that “[t]he smell of

marijuana, alone, by a person qualified to recognize the odor, is sufficient to

establish probable cause to conduct a search.” State v. Moore, 90 Ohio St.3d 47

(2000), paragraph one of the syllabus. Moore makes no clear distinction between

the smell of burnt marihuana and the smell of fresh marihuana.


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       {¶27} At the suppression hearing, Navarro offered nothing to rebut

Detective Wedge’s claim that he was able to smell the distinct odor of fresh,

unburnt marihuana in the air. For example, Navarro did not question Detective

Wedge about his experience in detecting the odor of fresh, unburnt marihuana;

Navarro did not question Detective Wedge on the distance between Detective

Wedge and the Residence at the time he claimed to smell the odor of fresh,

unburnt marihuana; and Navarro did not question Detective Wedge on other

possible sources of the odor of fresh, unburnt marihuana.

       {¶28} Therefore, pursuant to Moore, we find that Detective Wedge’s

affidavit established a substantial basis for concluding that probable cause existed

to believe that marihuana-related activity was occurring in the Residence. In

addition, the trial court noted the windows were covered or had the blinds pulled

shut consistent with the officer’s experience in other cases of marijuana

cultivation.

       {¶29} Accordingly, we overrule Navarro’s first assignment of error.

                            Assignment of Error No. II

       {¶30} In his second assignment of error, Navarro argues that the second

search warrant did not describe with particularity the items to be seized.

Specifically, Navarro claims that the second search warrant was overly broad




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insofar as it provided for the seizure of items related to all drug-related activity, as

opposed to the seizure of items related to the cultivation and sale of marihuana.

       {¶31} Crim.R. 47 provides, in relevant part:

       An application to the court for an order shall be by motion. A
       motion, other than one made during trial or hearing, shall be in
       writing unless the court permits it to be made orally. It shall state
       with particularity the grounds upon which it is made and shall set
       forth the relief or order sought. It shall be supported by a
       memorandum containing citations of authority, and may also be
       supported by an affidavit.

(Emphasis added.).

       {¶32} “[Crim.R. 47], * * * when applied to a motion to suppress evidence

obtained by search and seizure, requires that the prosecution be given notice of the

specific legal and factual grounds upon which the validity of the search and

seizure is challenged.” City of Xenia v. Wallace, 37 Ohio St.3d 216, 219 (1988).

“The prosecutor must know the grounds of the challenge in order to prepare his

case, and the court must know the grounds of the challenge in order to rule on

evidentiary issues at the hearing and properly dispose of the merits.” Id. at

218. “Failure on the part of the defendant to adequately raise the basis of his

challenge constitutes waiver of that issue on appeal.” Id; see also State v.

Wangler, 3d Dist. Allen No. 1-11-18, 2012-Ohio-4878, ¶ 25.

       {¶33} In reviewing the record, it is clear that the issue of particularity was

never raised before the trial court.       Navarro’s motion to suppress and his


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supplemental memorandum focused primarily on the issue of the “plain smell

doctrine” and whether it applied to the odor of fresh, unburnt marihuana.

Likewise, Navarro never mentioned the warrants’ lack of particularity at the

suppression hearing. Thus, Navarro’s argument is waived on appeal.

       {¶34} Accordingly, we overrule Navarro’s second assignment of error.

       {¶35} Having found no error prejudicial to Navarro, in the particulars

assigned and argued, we affirm the judgment of the trial court.

                                                                  Judgment Affirmed

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr




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