         [Cite as State v. Griffin, 2015-Ohio-3566.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                             HAMILTON COUNTY, OHIO




STATE OF OHIO,                                         :   APPEAL NO. C-140591
                                                           TRIAL NO. B-1400363
        Plaintiff-Appellee,                            :
                                                              O P I N I O N.
  vs.                                                  :

MADISON GRIFFIN,                                       :

        Defendant-Appellant.                           :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, Sentences Vacated
                          and Cause Remanded

Date of Judgment Entry on Appeal: September 2, 2015



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Marguerite Slagle,
Assistant Public Defender, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




SYLVIA SIEVE HENDON, Presiding Judge.

       {¶1}   Madison Griffin appeals the judgment of the Hamilton County

Common Pleas Court convicting him of illegal cultivation of marijuana and

possession of marijuana. Griffin challenges the trial court’s denial of his motion to

suppress, as well as the court’s imposition of multiple sentences for allied offenses.

We affirm the trial court’s denial of the suppression motion, but we reverse its

judgment with respect to Griffin’s sentences.

                           The Search Warrant Affidavit


       {¶1}   Deputy Michael Kane, an 11-year veteran of the Hamilton County

Sheriff’s Department, sought a warrant to search a residence located at 3021

Cavanaugh Avenue; to search a person named Robin Morgan who was connected to

the address; and to search her vehicle. In his affidavit in support of the warrant, he

set forth his experience in drug investigation, including his current assignment as an

agent of the Regional Narcotics Unit (“RENU”).

       {¶2}   In addition, Deputy Kane noted the following facts. On January 16,

2014, RENU agents had received information from an anonymous complainant

indicating that individuals were possibly growing marijuana inside a residence at

3021 Cavanaugh Avenue. The complainant relayed that he had been inside the

residence for a service call and had observed a “large marijuana grow.”

       {¶3}   On January 25, 2014, Deputy Kane and another officer removed two

black trash bags that had been abandoned at the curbside in front of 3021 Cavanaugh

Avenue.   He examined the contents of the bags and discovered marijuana and




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trimmings from marijuana plants. Also recovered from the trash were articles of

mail addressed to Robin Morgan at 3021 Cavanaugh Avenue, Cincinnati, Ohio 45211.

         {¶4}   Based on Deputy Kane’s experience, marijuana plant trimmings were

indicative of the cultivation of marijuana. It was his belief that additional marijuana

and marijuana plants were located in the residence and that contraband, weapons, or

trafficking monies were located in the residence and in a particular vehicle that was

parked on the street in front of the residence. The vehicle was registered to Robin

Morgan, whose address was listed as 3021 Cavanaugh Avenue, Cincinnati, Ohio

45211.

         {¶5}   Based on the affidavit, the deputy obtained a search warrant for the

residence at 3021 Cavanaugh Avenue, for Robin Morgan’s person, and for:

                [A]ny safes or other containers in the residence, locked or

                unlocked, any outbuildings, garages attached or detached as

                well as any other structure within the cutilage [sic] or storage

                container assigned to said residence including any vehicles

                registered to or in control of Robin MORGAN.

         {¶6}   A judge of the Hamilton County Municipal Court issued the warrant

on January 27, 2014.

                           Execution of the Search Warrant


         {¶7}   Following the issuance of the warrant, RENU agents conducted

surveillance on the residence at 3021 Cavanaugh Avenue. According to Deputy Kane,

RENU agents would generally wait to execute a search warrant until an occupant left

the targeted residence, especially where a vehicle was named as an object of the

warrant, so that agents could get a key to the residence. Using this procedure, RENU



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agents could avoid being mistaken for intruders and harmed by other occupants or

dogs, and the agents could avoid destroying the door to the residence.

       {¶8}   On January 28, 2014, RENU agents saw a man, later identified as

Griffin, leave the residence and walk over to the vehicle that was specifically

identified in the warrant affidavit. Griffin was at the vehicle briefly, returned to the

residence, and then returned to the vehicle. Griffin entered the driver’s seat of the

vehicle and drove away.

       {¶9}   In a few minutes, Griffin was stopped by police within a mile of the

Cavanaugh residence. Cincinnati police officer Jason Hubbard approached the car,

and another officer repeated commands to Griffin to stop reaching and to get out of

the car. But Griffin would not get out of the car. Officer Hubbard saw Griffin leaning

over to his right toward the passenger seat, making a “sort of furtive movement to

the right side. That’s all I could see, but I didn’t know exactly what he was doing.”

Even after officers informed Griffin that they had a warrant to search the car, he

refused to comply with their orders to get out of the car. So officers had to physically

remove him.

       {¶10} Officer Hubbard executed the search warrant for the vehicle. He found

a bag of marijuana in the interior of the car in the area where Griffin had been

reaching. He also found paperwork in Griffin’s name and Griffin’s cell phone.

       {¶11} Officers recovered from Griffin a set of keys that contained a key to the

residence at 3021 Cavanaugh, as well as a key to the vehicle that Griffin had been

driving. Griffin informed them that there was a dog at the residence. Deputy Kane

returned with other officers to the residence, where their search revealed marijuana

plants in a “marijuana grow,” mail addressed to Griffin, and Griffin’s birth certificate.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶12} Griffin was arrested and charged with illegal cultivation of marijuana,

in violation of R.C. 2925.04(A), and possession of marijuana, in violation of R.C.

2925.11(A). He pleaded not guilty to the charges and filed a motion to suppress the

evidence that had been seized during the execution of the search warrant.

                              The Trial Court’s Findings


       {¶13} Following a hearing, the trial court denied Griffin’s motion to

suppress. The court found that the searched vehicle had been specifically identified

in the warrant affidavit as a vehicle that had been parked at the residence while the

officers had had it under surveillance. The court found that the vehicle’s license plate

number had been identified and that Robin Morgan was its registered owner. In

addition, the court determined that the search warrant itself had specifically

authorized the search of any vehicles registered to or in control of Robin Morgan.

       {¶14} The court noted that Griffin had left the residence, entered the

identified vehicle, and driven a short distance before the police seized and searched

the vehicle.

       {¶15} The court determined that the search of the vehicle was warranted:

               The fact the defendant removed the vehicle from the premises

       as the warrant was about to be executed doesn’t change the officers’

       right to search it. They could have detained it at the premises. They

       didn’t simply because the officers apparently were not assembled to

       execute the warrant or because it may have been safer to do it at some

       distance. But at any rate the vehicle was specifically referenced.

                                            ***




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                      OHIO FIRST DISTRICT COURT OF APPEALS



              The warrant also specifically authorized the seizure of keys

       showing ownership or control of the premises or the vehicle. The keys

       accessed [were] both permitted to be seized under the warrant.

              Taking all of the facts together and under the totality of the

       circumstances the Court finds there was cause for the stop of [the]

       vehicle and there was reasonable suspicion to detain the defendant

       during the course of the search of the vehicle and to arrest him on the

       finding of contraband being present in the defendant’s possession in

       the vehicle.

       {¶16} After the court’s ruling on his motion, Griffin entered no-contest pleas

to the marijuana charges, both of which were felonies of the fifth degree. The court

imposed three years’ community control for each offense.

                                   Probable Cause


       {¶17} In his first assignment of error, Griffin argues that the trial court erred

by denying his motion to suppress because the search warrant was issued without

probable cause. Appellate review of a ruling on a motion to suppress involves mixed

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

5372, 797 N.E.2d 71, ¶ 8. A reviewing court must accept the trial court’s findings of

fact if they are supported by competent and credible evidence. Id. But the reviewing

court must then determine, without any deference to the trial court, whether the

facts satisfy the applicable legal standard. Id.; State v. Ward, 1st Dist. Hamilton No.

C-140721, 2015-Ohio-2260, ¶ 16.

       {¶18} In reviewing an affidavit submitted in support of a search warrant, an

issuing magistrate must determine whether, under the totality of the circumstances



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                     OHIO FIRST DISTRICT COURT OF APPEALS



set forth in the affidavit, there is a fair probability that contraband or evidence of a

crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238, 103

S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. George, 45 Ohio St.3d 325, 544 N.E.2d

640 (1989), paragraph one of the syllabus. The role of a reviewing court is carefully

limited to simply ensuring that the magistrate had a substantial basis for finding that

probable cause existed. Gates at 238; George at paragraph two of the syllabus. An

appellate court has a limited role in reviewing the magistrate’s probable-cause

determination. George at paragraph two of the syllabus. The Ohio Supreme Court

has stated:

       In conducting any after-the-fact scrutiny of an affidavit submitted in

       support of a search warrant, trial and appellate courts should accord

       great 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., citing Gates.

       {¶19} In a recent case, the Ohio Supreme Court held that in determining

whether probable cause exists to issue a search warrant where a supporting affidavit

relies in part on evidence seized from a trash pull, courts must look at the totality of

the circumstances. State v. Jones, ___ Ohio St.3d ___, 2015-Ohio-483, ___ N.E.3d

___, syllabus. The court held that evidence seized from a single trash pull that

corroborated tips and background information involving drug activity was sufficient

to establish probable cause for a search warrant. Id.

       {¶20} In State v. Jones, the court reviewed a decision from the Eighth

Appellate District that had affirmed the suppression of evidence discovered through




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                        OHIO FIRST DISTRICT COURT OF APPEALS



the execution of a search warrant on the ground that it had been issued without

probable cause.      A trash pull from the residence had corroborated information

linking the address to methamphetamine production and distribution from multiple

sources. Jones at ¶ 18. In a unanimous decision, the Ohio Supreme Court reversed,

holding that the contents of a trash pull should have been considered as part of the

totality of the circumstances, along with the other information presented in the

affidavit accompanying the request for the search warrant. Jones at ¶ 15. The court

stated:

          [W]hile the Eighth District affirmed the trial court’s decision to grant

          the motion to suppress based upon its determination that the

          contraband recovered from the trash did not necessarily render the

          continued existence of methamphetamine at 1116 Rowley probable, an

          examination of the totality of the circumstances indicates otherwise.

Id. at ¶ 17.

          {¶21} Therefore, under the totality of the circumstances, the court held, the

affidavit had demonstrated probable cause that evidence of a crime would be found

at the residence. Id.

          {¶22} In this case, Deputy Kane’s affidavit demonstrated probable cause that

contraband or evidence of marijuana cultivation would be found in the residence and

in the vehicle parked at the residence. The affidavit described an anonymous tip that

there was a large “marijuana grow” in the house, and a trash pull revealed evidence

of active marijuana cultivation as well as mail addressed to the owner of the vehicle

that was parked at the residence. Following the admonition in George that we

accord great deference to the issuing magistrate’s probable-cause determination and




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                     OHIO FIRST DISTRICT COURT OF APPEALS



that we resolve cases in favor of upholding the search warrant, we hold that the

search warrant in this case was supported by probable cause and that the trial court

properly denied Griffin’s motion to suppress. See George; see also Jones at ¶ 18.

Consequently, we overrule the first assignment of error.

                             The Seizure of the Vehicle


       {¶23} In his second assignment of error, Griffin argues that the trial court

should have granted his motion to suppress evidence because the seizure of the

vehicle exceeded the scope of the search warrant once he had driven away from the

residence. Griffin concedes that the search warrant permitted the search of Ms.

Morgan’s vehicles that were located within the curtilage or property. But he claims

that the warrant “was limited to vehicles on the driveway, in the garage, or within the

curtilage of 3021 Cavanaugh Avenue.”

       {¶24} Griffin cites several Ohio cases for the proposition that a warrant to

search a dwelling extends to permit the search of motor vehicles located within the

curtilage of the premises. See State v. Dudley, 2d Dist. Montgomery No. 21781,

2008-Ohio-6545 (search warrant authorizing the search of a residence and the

“surrounding common curtilage,” extended to a car parked in the driveway); State v.

Williams, 8th Dist. Cuyahoga No. 88137, 2007-Ohio-3897 (search warrant for the

premises, including “curtilage, common and storage areas and persons therein”

extended to a car parked in the driveway); State v. Simpson, 2d Dist. Montgomery

No. 19011, 2002 Ohio App. LEXIS 1310 (Mar. 22, 2002) (search warrant for the

premises included a car in an attached garage). But, Griffin contends, a search

warrant for a residence does not extend to a vehicle that is parked on a public street.

See State v. Ballez, 6th Dist. Lucas No. L-10-1012, 2010-Ohio-4720.



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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶25} Of all the cases cited by Griffin, only Simpson involved a warrant that

identified a vehicle as the object of the search. In Simpson, the search warrant had

authorized the search of a residence and a particular vehicle, but the warrant had

described the area to be searched as including “the described residence and the

surrounding curtilage.” Simpson at *3.          The Second District held that the search

warrant had extended to a van that was parked in an attached garage, stating, “[T]he

search warrant authorized the officers to search both the residence and the curtilage

for the marijuana. The vehicle was found inside the residence and the search of it

was reasonable.”

       {¶26} In the case before us, however, the search warrant authorized the

search of any vehicles registered to or in control of Robin Morgan regardless of their

location. As the trial court noted, the fact that Griffin drove the targeted vehicle

away from the premises prior to the execution of the search warrant did not affect

the right of police to search it.

                                    The Detention of Griffin


       {¶27} In his second assignment of error, Griffin also argues that the seizure

of his person exceeded the scope of the search warrant. He relies on the United

States Supreme Court’s decision in Bailey v. United States, ___ U.S. ___, 133 S.Ct.

1031, 185 L.Ed.2d 19 (2013), which addressed the question of whether the Fourth

Amendment justifies the detention of occupants beyond the immediate vicinity of the

premises covered by a search warrant.

       {¶28} In Bailey, the court revisited its decision in Michigan v. Summers, 452

U.S. 692, 705, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), where it had held that officers

executing a search warrant were permitted “to detain the occupants of the premises



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                     OHIO FIRST DISTRICT COURT OF APPEALS



while a proper search is conducted.” The detention was justified by law enforcement

interests in officer safety, the efficacy of the search, and the prevention of flight.

Summers at 702-703. In Bailey, the court found that none of those three interests

justified the detention of recent occupants beyond the immediate vicinity of the

premises to be searched. As a result, the court limited the rule in Summers to “those

who are present when and where the search is being conducted.” Bailey at 1040.

Consequently, the court held that the seizure of a person was unreasonable when he

was stopped and detained at some distance away from the premises to be searched.

Id. at 1042.

       {¶29} Bailey is readily distinguishable from the instant case because the

“premises to be searched” in that case had consisted solely of a residence. Id. at

1036. Therefore, the rule in Summers did not apply to allow police to seize Bailey

once he had left the “immediate vicinity of a premises to be searched.” Id. at 1043.

In this case, however, the “premises to be searched” consisted of both a residence

and vehicles registered to a specific person. So the warrant itself authorized the stop

and search of the vehicle, and the rule in Summers justified the detention of Griffin

as the occupant of that vehicle. We overrule the second assignment of error.

                                   Griffin’s Arrest


       {¶30} In his third assignment of error, Griffin argues that the trial court

erred in concluding that the police had reasonable suspicion to detain him and

probable cause to arrest him based upon the small amount of marijuana found in the

car. As we have explained, the detention of Griffin was justified under Summers.

Moreover, police had probable cause to arrest Griffin because they found him to

possess marijuana and keys to the home where marijuana plants and further



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evidence tying him to the residence was discovered.              We overrule the third

assignment of error.

                                   Sentencing Errors


       {¶31} In his fourth assignment of error, Griffin argues that the trial court

erred by imposing multiple sentences for allied offenses. The state concedes the

error. Accordingly, we vacate the sentences for illegal cultivation of marijuana and

possession of marijuana, and remand the cause to the trial court so that the state

may elect which offense it will pursue against Griffin. See State v. Whitfield, 124

Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraph two of the syllabus. In all

other respects, the trial court’s judgment is affirmed.

                                                                   Judgment accordingly.


FISCHER and MOCK, JJ., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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