[Cite as State v. Ortega, 2012-Ohio-5953.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 5-11-46

        v.

RAMON ORTEGA, III,                                        OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Hancock County Common Pleas Court
                           Trial Court No. 2010 CR 188

                                      Judgment Affirmed

                           Date of Decision: December 17, 2012




APPEARANCES:

        W. Alex Smith for Appellant

        Mark C. Miller and Alex K. Treece for Appellee
Case No. 5-11-46


ROGERS, J.

       {¶1} Defendant-Appellant, Ramon Ortega III, appeals the judgment of the

Court of Common Pleas of Hancock County convicting him of drug possession

and possession of a firearm under disability. On appeal, Ortega argues that the

investigating police officers violated his right against self-incrimination and

lacked the requisite probable cause to obtain a search warrant for his home. As a

result, Ortega asserts that the trial court erroneously overruled his motion to

suppress the evidence derived from the search of his home. For the reasons that

follow, we affirm the trial court’s judgment.

       {¶2} On September 14, 2010, the Hancock County Grand Jury indicted

Ortega on the following counts: (1) possession of cocaine, in violation of R.C.

2925.11(A), a felony of the fifth degree; and (2) possession of a firearm under

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

       {¶3} The indictment arose from the investigatory activities of the Metrich

drug task force’s Hancock County Division, which is a collaborative effort

involving the Findlay Police Department, Hancock County Sheriff’s Office, and

Hancock County Prosecutor. On September 13, 2010, a confidential informant

contacted Officer Bryon Deeter, a member of the Findlay Police Department who

is assigned to Metrich, and offered to set up a controlled drug buy with Amanda

Bish, a resident of Findlay. Officer Deeter accepted the offer and the informant


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called Bish seeking crack cocaine. Bish told the informant that she could sell

crack cocaine to him, but that she needed the informant to pick her up at her house

and take her to another location.

       {¶4} After making these arrangements, Officer Deeter and another Metrich

officer met the informant, wired him with secret audio and video recording

devices, searched his automobile to ensure that no money or drugs were present,

and gave him $150.00 of prerecorded money for the drug transaction.         The

informant then left to meet Bish with Officer Deeter following in an unmarked

police vehicle. Throughout the drug buy, Officer Deeter observed the actions of

Bish and the informant and was able both to hear the audio from the informant’s

wire and to contact the informant via telephone.

       {¶5} The informant met Bish at an intersection near her home.         After

getting into the informant’s automobile, she directed him to drive to the area

around 841 South Cory Street and to park near the house. When they arrived at

the location, the informant gave the $150.00 to Bish, who got out of the

automobile and went inside the house at 841 South Cory Street. At that time,

there were two males walking around the area who entered the house after Bish.

Officer Deeter then called the informant, who confirmed that he had picked up

Bish and that she had just gone into the house at 841 South Cory Street. Since

Bish was inside the house for a longer than expected period, the informant called


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her. She told the informant that the drug supplier was not at the house and that she

had to wait for him.

       {¶6} Shortly after this phone call, Bish returned to the informant’s

automobile and gave him a small amount of crack cocaine. The informant drove

Bish back to her home and then returned to the police station.           There, the

informant handed over the crack cocaine that he received and the Metrich officers

searched both his automobile and his person to ensure that no other drugs or

money were present. He described the two males walking around the area and

said that when he left, the males were still inside the house. After the informant

was done with his narrative account, the Metrich officers drove him back to the

location of the drug transaction. Once they reached the location, the informant

again confirmed that Bish and the males had entered the house at 841 South Cory

Street during the course of the drug transaction.

       {¶7} Due to Officer Deeter’s observations of the informant’s activities, the

police sought a search warrant of the property at 841 South Cory Street. The

affidavit in support of the search warrant request included Officer Deeter’s

observations of the drug transaction and stated the involvement of the confidential

informant. However, the affidavit did not provide any facts outlining the accuracy

of the informant’s previous tips. After reviewing the affidavit, the judge issued

the search warrant for 841 South Cory Street. The warrant allowed the search of


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the “building [and] place” at that address, as well as the person of Ortega, the

owner of the property. (Docket No. 17, Exhibit A, p. 1). It also instructed the

officers to search for “any deadly weapon or firearm as defined in § 2923.11 R.C.

to protect or defend drugs of abuse.” Id.

       {¶8} Metrich officers executed the search warrant during the early morning

hours of September 14, 2010. At the suppression hearing, Officer Deeter testified

that he entered the property after the entry team had already cleared the house and

gathered the house’s occupants in the living room area. When Officer Deeter went

into the house, Ortega was on the floor and already handcuffed. Officer Deeter

then took Ortega from the living room through a doorway opening into the

kitchen, which is immediately next to the living room.

       {¶9} While in the kitchen, Officer Deeter testified that the following

happened regarding the reading of Ortega’s Miranda rights:

       Q:     What happened once you sat [Ortega] down at the kitchen
       table?

       A:      Sat him down at the kitchen table. Handed him the warrant,
       allowed him to review it. Detective Seem [another Metrich officer]
       was in the living room area and began to speak with the persons in
       that area and advised them that he was going to advise everyone of
       their rights. At that point I stopped. I asked Mr. Ortega to listen to
       Detective Seem as well. When he completed the warning I asked
       Mr. Ortega if he understood his rights. He stated that he did, and
       that he would speak with me.




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      Q:     Sitting where you were with Mr. Ortega, were you able to
      clearly hear the rights that Detective Seem was reviewing with the
      other individuals?

      A:     Yes.

      Q:      Was Detective Seem doing that in a loud voice so everybody
      in that room could hear?

      A:     Yes.

      Q:    Mr. Ortega have any questions about those Miranda
      warnings?

      A:     No.

      Q:    Did you go over anything, any more specific detail about
      whether or not he needed to speak with you at that point?

      A:      I just advised him that he didn’t have to talk to with [sic] me
      if he didn’t want to. Suppression Hearing Tr., p. 29-30.

Officer Deeter testified that based on his previous interactions with Ortega, “[h]e

exhibits a normal ability to function and understand what’s going on.” Id. at 31.

As a result, Officer Deeter had no concern that Ortega did not understand the

Miranda warning that Detective Seem gave.

      {¶10} After the reading of Ortega’s Miranda rights, Ortega started to

question what the officers were searching for:

      A:    * * * He [Ortega] stated – actually he asked me at that point
      what we were looking for.

      Q:     What did you tell Mr. Ortega at that point?



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      A:     That we were there looking for drugs, weapons, or anything
      related to that.

      Q:     Did you ask him if any of those things were in the home at
      that point?

      A:    Actually he offered up that there was a firearm in his
      bedroom in a dresser. In a top dresser drawer in his bedroom. Id. at
      30.

Officer Deeter informed Detective Seem and another officer on the property of

Ortega’s admission. The officers went to Ortega’s bedroom and found the firearm

in the location that Ortega described. The investigating officers also discovered

cocaine during their execution of the search warrant.

      {¶11} On December 21, 2010, Ortega filed a motion to suppress the

evidence acquired from his residence on the basis that there was insufficient

probable cause to support the issuance of the search warrant. The next day, Ortega

filed a motion to suppress his confession to the possession of a firearm on the

basis that he was not properly Mirandized by the officers. On March 2, 2011, the

trial court conducted a suppression hearing in which Officer Deeter testified as

described above. No other witnesses were called to the stand. After considering

the evidence, the trial court denied Ortega’s motions on May 4, 2011.

      {¶12} On August 26, 2011, Ortega withdrew his not guilty pleas and

entered no contest pleas to both charges alleged in the indictment. The matter then




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proceeded to sentencing. After the sentencing hearing, the trial court sentenced

Ortega to a total of ten years and six months in prison on December 12, 2011.

       {¶13} Ortega filed this timely appeal, presenting the following assignments

of error for our review.

                           Assignment of Error No. I

       THE TRIAL COURT ERRED WHEN THEY [SIC] RULED
       THAT THERE HAD BEEN NO VIOLATION OF MR.
       ORTEGA’S RIGHT AGAINST SELF-INCRIMINATION.
       THIS COURT SHOULD REVERSE AND HOLD THE
       EVIDENCE AND STATEMENTS COLLECTED SHOULD BE
       SUPPRESSED.

                           Assignment of Error No. II

       THE TRIAL COURT ERRED WHEN THEY [SIC] RULED
       THAT THERE HAD BEEN SUFFICIENT PROBABLE
       CAUSE TO ISSUE A SEARCH WARRANT FOR THE HOME.
       THIS COURT SHOULD REVERSE AND HOLD THE
       EVIDENCE AND STATEMENTS COLLECTED SHOULD BE
       SUPPRESSED.

                            Assignment of Error No. I

       {¶14} In his first assignment of error, Ortega claims that the trial court

should have granted his motion to suppress because the investigating officers

violated his right against self-incrimination and obtained information that led to

the discovery of his firearm. Specifically, Ortega argues that the police failed to

Mirandize him before interrogating him. We disagree.




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                     Standard of Review for Motions to Suppress

       {¶15} “Appellate review of 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 fact so long as they are supported by some

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. Id.

                                 Miranda Standard

       {¶16} Under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), a

criminal suspect in police custody must be warned of his right to remain silent.

State v. Lather, 110 Ohio St.3d 270, 2006-Ohio-4477, ¶ 6, citing Miranda at 479.

Absent such a warning, a suspect’s statements during a custodial interrogation are

subject to suppression. In re J.C., 173 Ohio App.3d 405, 2007-Ohio-5763, ¶ 14

(2d Dist.).   However, if the suspect knowingly, intelligently, and voluntarily

waives his Miranda rights, then suppression is inappropriate. State v. Wheatley,

3d Dist. No. 1-10-75, 2011-Ohio-1997, ¶ 11, citing Miranda at 444. To determine


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whether a suspect gave a valid waiver, we consider the totality of the

circumstances.   State v. Gumm, 73 Ohio St.3d 413, 429 (1995).            Relevant

circumstances include “the age, mentality, and prior criminal experience of the

accused; the length, intensity, and frequency of interrogation; the existence of

physical deprivation or mistreatment; and the existence of threat or inducement.”

State v. Campbell, 90 Ohio St.3d 320, 332 (2000).

      {¶17} Police officers are not required to provide Miranda warnings to

every person they question. In re T.W., 3d Dist. No. 9-10-63, 2012-Ohio-2361, ¶

22, citing State v. Biros, 78 Ohio St.3d 426, 440 (1997). Instead, police officers

are only required to administer Miranda warnings where the individual questioned

is subject to “custodial interrogation.” Id., quoting Biros at 440. To determine if

an interrogation is custodial in nature, the court assesses “‘how a reasonable man

in the suspect’s position would have understood his situation.’” State v. Mason,

82 Ohio St.3d 144, 153 (1988), quoting Berkemer v. McCarty, 486 U.S. 420, 442,

104 S.Ct. 3138 (1984). Accordingly, we apply the following test to determine the

existence of a custodial interrogation: “whether, under the totality of the

circumstances, a ‘reasonable person would have believed that he would not be free

to leave.’” Gumm at 429, quoting United States v. Mendenhall, 446 U.S. 544, 554,

100 S.Ct. 1870 (1980). Even if a defendant is in custody, Miranda still does not

bar the admission of the defendant’s “volunteered statements.” State v. McGuire,


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80 Ohio St.3d 390, 401 (1997). As such, a defendant’s statements before the

police begin questioning are considered voluntary and not made in the context of a

custodial interrogation. Id.

       {¶18} First, we consider whether the Metrich officers properly Mirandized

Ortega. The record reflects that after moving Ortega to the kitchen, which is

immediately next to the living room and through an open doorway, Officer Deeter

recognized that Detective Seem was giving Miranda warnings to the individuals in

the living room. At that time, Officer Deeter instructed Ortega to listen to the

warning, which was spoken loudly. Once Detective Seem finished, Officer Deeter

asked Ortega whether he understood the warning and Ortega responded

affirmatively. In light of these facts, we reject Ortega’s claim that he was not

properly Mirandized.

       {¶19} Second, we assess whether Ortega validly waived his Miranda rights

in light of the factors articulated in Campbell. There is no indication in the record

that the officers mistreated or harmed Ortega during the course of the search

warrant’s execution.    Similarly, the record is devoid of references to Officer

Deeter making any threats or to a long and arduous interrogation. Rather, the

record reveals that Ortega is a middle-aged man with previous experience in the

criminal justice system and an ability to understand the English language. The

totality of these circumstances suggests that Ortega was able to validly waive his


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Miranda rights. Further, Ortega did indeed waive those rights by affirmatively

indicating that he understood his rights and then offering his incriminating

statements. Thus, since Ortega was Mirandized and waived his rights, we find that

it was not erroneous for the trial court to refrain from suppressing Ortega’s

statement regarding the location of the firearm.

       {¶20} In addition to claiming that he was not properly Mirandized, Ortega

argues that the Miranda warning described above falls under the ambit of Missouri

v. Siebert, 542 U.S. 600, 124 S.Ct. 2601 (2004), which disapproves of the

“Mirandize later” strategy. Ortega’s contention rests on his suggestion that the

entry officers, with their firearms still drawn, asked him immediately after

handcuffing him whether there were weapons in the house. But, there is no

evidence in the record to reflect that this actually happened. As a result, we are

unable to find that Siebert applies to this matter.

       {¶21} Even if the officers failed to Mirandize Ortega or he failed to validly

waive his rights, the result would be the same. A review of the record discloses

that Ortega was not being questioned at the time that he offered his self-

incriminating statements. After the Miranda warning was given, Ortega asked

what the officers were searching for. When Officer Deeter responded that they

were looking for guns and drugs, Ortega, without questioning by Officer Deeter,

volunteered that he had a weapon in his bedroom. Miranda does not bar this type


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of volunteered statement, so we would reach the same conclusion even if there

was a defect in the Miranda warning and waiver.

       {¶22} Accordingly, we overrule Ortega’s first assignment of error.

                            Assignment of Error No. II

       {¶23} In his second assignment of error, Ortega contends that the trial court

should have granted his motion to suppress because the judge lacked the requisite

probable cause to issue the search warrant for his home. We disagree.

       {¶24} The Fourth Amendment to the United States Constitution, which

applies to the states through the Fourteenth Amendment, provides as follows:

       [The r]ight 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, so we

construe the protections granted by the United States and Ohio constitutions as

coextensive. See State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, ¶ 47

(“[W]hen provisions of the Ohio Constitution and United States Constitution are

essentially identical, we should harmonize our interpretations of the provisions * *

*”).

       {¶25} The probable cause standard falls below both the reasonable doubt

and preponderance of the evidence standards. State v. Courtney, 3d Dist. No. 17-


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10-26, 2012-Ohio-989, ¶ 21. Because the standard “only requires the existence of

circumstances that warrant suspicion,” id., it merely mandates “a showing that a

possibility of criminal activity exists, not a prima facie showing of criminal

activity,” State v. Young, 146 Ohio App.3d 245, 254 (11th Dist. 2001).            In

assessing the existence of probable cause, the issuing judge must consider the

totality of the circumstances to determine “whether * * * there is a fair possibility

that contraband or evidence of a crime will be found in a particular place.” State

v. George, 45 Ohio St.3d 325 (1989), paragraph one of the syllabus.

       {¶26} When reviewing the judge’s decision to issue a search warrant, we

do not substitute our own judgment for that of the judge. Id. at paragraph two of

the syllabus. Instead, our review is restrained to determining whether “the [judge]

had a substantial basis for concluding that probable cause existed.”              Id.

Accordingly, we grant “great deference to the [judge]’s determination of probable

cause, and doubtful or marginal cases * * * should be resolved in favor of

upholding the warrant.” Id.

       {¶27} The affidavit in this matter implicates the actions of a confidential

informant. We note that a mere conclusory statement in an affidavit regarding the

reliability of an informant is insufficient, by itself, to support the issuance of a

warrant. State v. Gill, 49 Ohio St.2d 177, 178-79 (1977). Rather, “[t]here must be

some basis in the affidavit to indicate the informant’s credibility, honesty, or


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reliability.” State v. Harry, 12th Dist. No. CA2008-01-0013, 2008-Ohio-6380, ¶

20. Courts consider such a basis to be sufficiently present when the affidavit

contains “detailed information from [the] informant” or there is “police

corroboration of the informant’s intelligence through its own independent

investigation * * *” Id.

       {¶28} Here, the affidavit in support of the search warrant included a

thorough recapitulation of the relevant facts giving rise to probable cause that drug

trafficking was occurring at 841 South Cory Street. Indeed, the affidavit indicated

that a confidential informant acted as the buyer in the controlled buy, but failed to

state the previous record of the informant in providing accurate tips. However, the

affidavit also included the fact that Officer Deeter, the affiant, personally observed

all of the events involving the informant. Officer Deeter saw the informant pick

up Bish and drive to 841 South Cory Street. Further, he observed Bish enter the

house there, along with two other males, and then return to the automobile, where

she transferred the crack cocaine to the informant. These surveillance activities

proved that the confidential informant’s tip in this instance was reliable since

Officer Deeter’s observations confirmed what the informant stated. See State v.

Richardson, 4th Dist. No. 08CA3022, 2009-Ohio-923, ¶ 11 (affirming judgment

that probable cause supported search warrant where police observed the original

informant’s activities); State v. Craft, 181 Ohio App.3d 150, 2009-Ohio-675, ¶ 14


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(12th Dist.) (same); State v. Williams, 3d Dist. No. 14-02-13, 2002-Ohio-6288, ¶

13 (same). As such, the affidavit provided a substantial basis from which the

judge could find probable cause.

      {¶29} Ortega offers three arguments to suggest that the warrant was invalid

here. First, he finds fault in Officer Deeter’s failure to include the confidential

informant’s history of providing accurate tips. This contention is unavailing since

it fails to account for Officer Deeter’s observation of the drug transaction between

the informant and Bish. Such observation amounts to the “police corroboration”

that sufficiently supports the issuance of a search warrant. Harry, 2008-Ohio-

6380, at ¶ 20. This corroboration renders the informant’s history of reliability

immaterial here.

      {¶30} Second, Ortega criticizes various deficiencies in the information that

was gleaned from the police’s surveillance of the drug transaction and the

informant’s statements. In particular, he points out that (1) the drug transaction

did not occur on the property at 841 South Cory Street; and (2) no one saw any

drugs on the property before the request for the search warrant. However, under

the probable cause standard, the State was not required to show either of these

facts. See State v. Metzger, 3d Dist. Nos. 15-05-15, 15-05-17, 2006-Ohio-5161, ¶

29 (finding that police’s observation of controlled buy in which seller entered

house and then returned to give drugs to buyer was sufficient to provide probable


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cause for search warrant). It merely had to show that there was a possibility of

criminal activity at 841 South Cory Street and the evidence discussed above

satisfied this requirement. As a result, these deficiencies do not persuade us that

the issuing judge lacked probable cause.

       {¶31} Third, Ortega claims that the State violated R.C. 2933.23 and R.C.

2933.24 when Officer Deeter failed to provide a copy of the affidavit in support of

the search warrant when the police executed the warrant. Neither of these sections

of the Revised Code requires the service of the affidavit. Indeed, Crim.R. 41(D)

merely mandates that the police serve the warrant. See also State v. McKeown, 1st

Dist. No. C-790900 (Jan. 21, 1981) (affirming denial of suppression where the

defendant claimed constitutional violation arising from police’s failure to serve

affidavit in support of search warrant). Consequently, we find no error in the

failure to serve the affidavit on Ortega.

       {¶32} In sum, Officer Deeter’s observation of the confidential informant

during the course of the controlled buy provided sufficient facts for the judge to

find probable cause and issue the search warrant. Ortega’s arguments to the

contrary are unavailing and we reject them.

       {¶33} Accordingly, we overrule Ortega’s second assignment of error.




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      {¶34} Having found no error prejudicial to Ortega, in the particulars

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

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




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