[Cite as State v. Gies, 2019-Ohio-4249.]




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



STATE OF OHIO,                             :   APPEAL NO. C-180597
                                               TRIAL NO. B-1802799-A
        Plaintiff-Appellee,                :

  vs.                                      :     O P I N I O N.

CHRISTOPHER GIES,                          :

      Defendant-Appellant.                 :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: October 16, 2019




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W. Springman,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann, Assistant
Public Defender, for Defendant-Appellant.
                       OHIO FIRST DISTRICT COURT OF APPEALS


BERGERON, Judge.

       {¶1}   The roots of this case stretch back over a decade, to defendant-appellant

Christopher Gies’s 2007 misdemeanor conviction that resulted in a community control

sentence. Had he reported, we probably wouldn’t be considering this question today, but he

instead absconded, resulting in an open arrest warrant. That set the stage for his 2018

arrest, and when officers finally apprehended him, they discovered a house full of

contraband. Armed with that evidence, the state convicted him of much more serious drug

and weapons charges. Mr. Gies now appeals, seeking to unravel the conviction based on the

alleged improper seizure of the evidence (the officers had no search warrant). For the

reasons discussed below, we affirm, finding the search and seizures appropriate under the

plain view exception and the good faith exception.

                                             I.

       {¶2}   Tipped off by an informant that Mr. Gies might be selling drugs from his

residence, officers discovered a long-dormant arrest warrant related to his refusal to report

to probation in 2007. Two probation officers, Officers Schad and Miyagawa, descended

upon the residence to execute the arrest warrant, accompanied by Cincinnati Police Officer

Butler. Upon arrival, the officers confirmed with someone standing outside that Mr. Gies

was indeed in the house. They then called out through the screen door for him, announced

their presence, and entered the residence into the kitchen.        Drug paraphernalia and

weapons scattered around the kitchen greeted them. Mr. Gies then ascended from the

basement and the probation officers promptly arrested him, taking him outside the house to

be secured by Officer Butler. Upon searching Mr. Gies, the officers discovered over $4,500

in cash.

       {¶3}   Based on the weapons and drug paraphernalia viewed in plain sight, the

officers asked Mr. Gies if anyone else was in the house. Nodding towards the front of the


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house, he indicated that his girlfriend, Allison Vilas (who also had a warrant out for her

arrest) was in “our bedroom.” Leaving Mr. Gies outside, the officers re-entered the house to

arrest Ms. Vilas.   On their way to the bedroom, the officers observed yet more drug

paraphernalia, including drug powder lines and residue, credit cards, and straws strewn

across a coffee table. The officers then arrived at the bedroom, finding Ms. Vilas, and once

again, viewing additional evidence in plain view—more contraband, weapons, and drug

paraphernalia.

       {¶4}   At this point, after arresting Ms. Vilas, the probation officers and the police

searched the entire house (without a warrant). This search uncovered more of the same,

multiple firearms and more contraband. In the wake of Mr. Gies’s arrest and the search of

his residence, the state indicted Mr. Gies for nine counts of various drug and firearm-related

offenses. Subsequently, Mr. Gies moved to suppress all items seized from the residence,

arguing that the probation officers conducted a warrantless search since, by the fortuity of

his failure to report, he never received written notice of the possibility of warrantless

searches that a defendant sentenced to community control is supposed to receive pursuant

to R.C. 2951.02(A). Nevertheless, the trial court deemed the search permissible, denied the

motion to suppress, and the case proceeded to a jury trial.

       {¶5}   Not surprisingly, the state’s case at trial focused on the items found as a result

of Mr. Gies’s arrest and the search of his residence, including, amongst other evidence,

various bags of drugs—cocaine, methamphetamine, amphetamine pills—stacks of empty

plastic baggies, a digital scale, a notebook detailing drug prices, the $4,500 found on Mr.

Gies, and multiple firearms. Probation Officer Miyagawa testified as to Mr. Gies’s and Ms.

Vilas’s arrests, the search of the home, and the drug paraphernalia, weapons, and

contraband observed in plain view. Additionally, Officer Butler described the firearms



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discovered during the search and the post-seizure test firing he conducted. In Mr. Gies’s

defense, he maintained that the residence searched was not his, claiming he was only a mere

visitor, and thus many of the items listed above could not be connected to him. His mother

testified to that effect at trial, asserting that he lived with her in Kentucky at the time of the

search.

          {¶6}    Ultimately, the jury acquitted Mr. Gies of trafficking in cocaine and one count

of aggravated trafficking, but found him guilty of possession of cocaine, two counts of

aggravated trafficking in drugs (one count including a major drug offender specification),

three counts of aggravated possession of drugs, and having weapons while under a

disability.      Accordingly, the court sentenced him to 22 years in prison.         From these

convictions, Mr. Gies now raises two assignments of error, asserting that the trial court

erred in denying his motion to suppress and challenging the weight and sufficiency of the

evidence supporting his convictions.

                                                 II.

          {¶7}    In challenging the trial court’s denial of his motion to suppress, Mr. Gies

targets the reasonableness of the probation officers’ search of his residence. “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, 797 N.E.2d 71, ¶ 8. We defer to the trial

court’s factual findings if they are supported by competent and credible evidence, but we

review de novo the court’s application of the law to those facts. Id.

          {¶8}    We begin with the framework of the Fourth Amendment, which protects

individuals against “unreasonable searches and seizures.” With nearly identical language,

Article 1, Section 14 of the Ohio Constitution affords these same protections. State v.

Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795, 25 N.E.3d 993, ¶ 11 (“[W]e have interpreted



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Article I, Section 14 as affording the same protection as the Fourth Amendment.”). And like

so many courts before us, we recognize that the “touchstone of the Fourth Amendment is

reasonableness.” State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 14,

quoting Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). In

evaluating the reasonableness of a search and seizure, we review the facts and

circumstances of each case, all the while recognizing reasonableness is “measured in

objective terms by examining the totality of the circumstances.”         Id., quoting Ohio v.

Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). Generally, under the

Fourth Amendment, warrantless searches are per se unreasonable, triggering the

applicability of the exclusionary rule. State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954,

45 N.E.3d 127, ¶ 181, citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19

L.Ed.2d 576 (1967).     Yet certain well-delineated exceptions exist, a few of which are

pertinent to our review today.

       {¶9}   Notably, Mr. Gies’s motion to suppress focuses on the controlled substances

and firearms seized as a result of the probation officers’ search. While Mr. Gies does not

contest the validity of the arrest warrant, he insists that the officers did not have a right

under R.C. 2951.02(A) (discussed more in-depth below) to search his home nor did the

officers’ search fall within any of the exceptions to the warrant requirement. But we are not

persuaded.

       {¶10} With respect to the plain view exception, officers may seize evidence in plain

view during a lawful search if (1) the seizing officer is lawfully located in a place from which

the evidence can be plainly viewed; (2) the seizing officer has a lawful right of access to the

object itself; and (3) the object’s incriminating character is “immediately apparent.” Horton

v. California, 496 U.S. 128, 136-137, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v.



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Buzzard, 112 Ohio St.3d 451, 2007-Ohio-373, 860 N.E.2d 1006, ¶ 16 (“[I]f a police officer is

lawfully on a person’s property and observes objects in plain or open view, no warrant is

required to look at them.”). Generally, we must be mindful in our application of this

exception to ensure that it does not swallow the rule. Or, as the Supreme Court put it, “ ‘the

‘plain view’ doctrine may not be used to extend a general exploratory search from one object

to another until something incriminating at last emerges.’ ” Horton at 136, quoting Coolidge

v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

       {¶11} With this backdrop in mind, we now turn to our plain view analysis. As to the

first requirement, the probation officers had a right to be in Mr. Gies’s residence, properly

executing the arrest warrant for him, and later for Ms. Vilas. See State v. Worley, 11th Dist.

Trumbull No. 2001-T-0048, 2002-Ohio-4516, ¶ 195 (“[I]t is clear from the record that the

police officers * * * had a right to be in the residence as they were seeking to arrest appellant

pursuant to an arrest warrant for grand theft of a motor vehicle.”). Indeed, Mr. Gies does

not quibble with this point.     From the kitchen, where the officers executed the arrest

warrant for Mr. Gies, through the living room, and all the way to the back bedroom where

the officers arrested Ms. Vilas, the officers observed a parade of drug paraphernalia,

weapons, and contraband. And thus not only were the officers lawfully present with a right

to access the many pieces of contraband strewn throughout the house, but the incriminating

character of those objects leapt out. Therefore, the evidence in plain view as the officers

effectuated both arrests fits comfortably inside the plain view exception.

       {¶12} While Mr. Gies is correct that not all relevant contraband and firearms seized

fall within the purview of the plain view exception, nevertheless, the good faith exception to

the exclusionary rule saves the remaining evidence seized (although the demarcation

between these two categories of evidence is not altogether clear from the record). Under



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this doctrine, despite the unlawful seizure of evidence, when “an officer acts with an

objectively reasonable, good-faith belief that his or her conduct is lawful, the deterrence

rationale for the exclusionary rule loses force,” and thus does not support the exclusion of

the unlawfully seized evidence. State v. Banks-Harvey, 152 Ohio St.3d 368, 2018-Ohio-201,

96 N.E.3d 262, ¶ 33. As pertinent to our case, the good faith exception may apply when an

officer conducts an unlawful search or seizure laboring under a mistake of law. State v.

Stadelman, 1st Dist. Hamilton No. C-130138, 2013-Ohio-5035, ¶ 10 (holding that because

the officer had a good faith belief that the defendant’s turn violated the relevant traffic law,

the court properly denied his motion to suppress despite the officer’s mistake of law); State

v. Gunzenhauser, 5th Dist. Ashland No. 09-CA-21, 2010-Ohio-761, ¶ 16 (“Under limited

circumstances, courts have held that the exclusionary rule may be avoided with respect to

evidence obtained in a stop based on conduct that a police officer reasonably, but

mistakenly, believes is a violation of the law.”); Heien v. North Carolina, 574 U.S. 54, 135

S.Ct. 530, 540, 190 L.Ed.2d 475 (2014) (denial of defendant’s motion to suppress was

proper because officer’s mistaken belief that the law required two operating headlights,

instead of one, was objectively reasonable based on the circumstances).

       {¶13} “To be reasonable is not to be perfect, and so the Fourth Amendment allows

for some mistakes on the part of government officials, giving them ‘fair leeway for enforcing

the law in the community’s protection.’ ” Heien at 536 quoting Brinegar v. United States,

338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). However, “ ‘[b]ecause courts must

be cautious in overlooking a police officer’s mistakes of law, the mistake must be objectively

reasonable.’ ” State v. Reedy, 5th Dist. Perry No. 12-CA-1, 2012-Ohio-4899, ¶ 18, quoting

Gunzenhauser at ¶ 16; see Heien at 539 (“The Fourth Amendment tolerates only reasonable

mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable.”).



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                        OHIO FIRST DISTRICT COURT OF APPEALS



(Emphasis sic.) To determine this, Ohio appellate courts, including us, review first the

relevant statute the officer mistakenly interpreted to evaluate any vagueness or ambiguity

inherent in the statute, or if it “requires judicial construction to determine its scope of

meaning.” Stadelman at ¶ 4, quoting Reedy at ¶ 19.

       {¶14} Accordingly, we turn our attention to R.C. 2951.02(A), which the probation

officers pointed to in order to justify the search, which provides:

       [P]robation officers * * * may search, with or without a warrant * * * the place

       of residence of the offender * * * in which the offender has a right * * * if the

       probation officers have reasonable grounds to believe that the offender is not

       abiding by the law or otherwise is not complying with the conditions of the

       misdemeanor offender’s community control sanction[.] * * * The court that

       places the misdemeanor offender under a community control sanction * * *

       shall provide the offender with a written notice that informs the offender that

       authorized probation officers * * * may conduct those types of searches during

       the period of community control sanction[.]

Because Mr. Gies never reported to probation back in 2007, the court issued a warrant for

his failure to report, thereby sufficiently tolling the probationary period. See R.C. 2951.07

(“If the offender under community control absconds * * * the period of community control

ceases to run until the time that the offender is brought before the court for its further

action.”). He thus qualifies as an “offender” within the meaning of this statute.

       {¶15} But, with that premise in mind, the statute does not definitely resolve how the

first and final sentences are to interrelate—in other words, is the right in the first sentence




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conditioned on the notice in the final? No Ohio court has yet shed light on this question.1

And we decline to answer it today because the play in the joints of the statute gives enough

latitude to the officers to render their search within the ambit of the good faith exception.

As in Stadelman and Reedy, the statute at issue in this case “is not free from ambiguity.”

Reedy at ¶ 19.

        {¶16} We thus find the officers’ belief that the statute enabled them to execute a

warrantless search sufficiently reasonable to trigger the protection of the good faith

exception on the facts at hand, even were we to ultimately conclude that their reading of the

statute was flawed. See United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587, 151

L.Ed.2d 497 (2001), quoting Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S.Ct. 3164, 97

L.Ed.2d 709 (1987) (“Inherent in the very nature of probation is that probationers ‘do not

enjoy the absolute liberty to which every citizen is entitled.’ ”).

        {¶17} Therefore, because the probation officers relied in good faith upon R.C.

2951.02(A) in conducting their warrantless search of Mr. Gies’s residence, the exclusionary

rule does not apply to the remaining evidence beyond the scope of the plain view exception.

Accordingly, we cannot say the trial court erred in denying Mr. Gies’s motion to suppress

under these particular circumstances, and we accordingly overrule Mr. Gies’s first

assignment of error.

                                                    III.

        {¶18} We next address Mr. Gies’s challenge to the weight and sufficiency of the

evidence supporting his convictions. In reviewing the sufficiency of the evidence to support

1 Ohio courts have interpreted the first sentence, but they have not wrestled with the impact of the final on
the first. See State v. Nelson, 1st Dist. Hamilton No. C-150650, 2016-Ohio-5344, ¶ 10 (“R.C. 2951.02(A)
authorizes a probation officer to search the probationer and his residence if the probation officer has
‘reasonable grounds to believe that the offender is not abiding by the law[.]’ ”); State v. Helmbright, 2013-
Ohio-1143, 990 N.E.2d 154, ¶ 20 (10th Dist.) (“Thus, a warrantless search, pursuant to R.C. 2951.02(A),
complies with the Fourth Amendment if the officer who conducts the search possesses ‘reasonable
grounds’ to believe that the probationer has failed to comply with the terms of their probation.”).

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a criminal conviction, “the question is whether after reviewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found all the essential

elements of the crime beyond a reasonable doubt.” State v. Pettus, 1st Dist. Hamilton No. C-

170712, 2019-Ohio-2023, ¶ 52, citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus. On the other hand, when reviewing the weight of the

evidence, we must “examine the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether, in resolving

conflicts in the evidence, the court clearly lost its way and created a manifest miscarriage of

justice.” Pettus at ¶ 52, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541

(1997).

          {¶19} As to the sufficiency argument, Mr. Gies challenges both his conviction for

having weapons while under a disability pursuant to R.C. 2923.13(A)(2) and his aggravated

trafficking conviction pursuant to R.C. 2925.03(A)(2).         Turning to the former, R.C.

2923.13(A)(2) requires that the offender have a firearm, as defined by R.C. 2923.11(B), and

that the firearm be “operable,” meaning “capable of expelling or propelling one or more

projectiles by the action of an explosive or combustible propellant.” See R.C. 2923.11(B)(1).

In determining this capability, “the trier of fact may rely upon circumstantial evidence,

including, but not limited to, the representations and actions of the individual exercising

control over the firearm.” See R.C. 2923.11(B)(2). Importantly, “[e]vidence of postseizure

test firing may prove operability of a firearm.” State v. Jackson, 169 Ohio App.3d 440,

2006-Ohio-6059, 863 N.E.2d 223, ¶ 28 (6th Dist.).

          {¶20} At trial, contrary to Mr. Gies’s assertions, the state offered testimony

concerning the firearms found at the residence and their capability of expelling a projectile.

Officer Butler not only thoroughly explained his procedure for test-firing the guns, but also



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                        OHIO FIRST DISTRICT COURT OF APPEALS



explicitly testified that, based off his test firing, the guns were indeed operable. As a result,

sufficient evidence existed to enable the jury to find beyond a reasonable doubt that the

discovered guns qualified as “operable” firearms within the meaning of the statute.

       {¶21} Mr. Gies’s sufficiency argument as to his aggravated trafficking in drugs

conviction also lacks merit.   In relevant part, R.C. 2925.03(A)(2) prohibits a person from

knowingly “prepar[ing] for distribution, or distribut[ing] a controlled substance * * * when

the offender knows or has reasonable cause to believe that the controlled substance * * * is

intended for sale or resale by the offender or another person.” Relying on State v. Edwards,

8th Dist. Cuyahoga No. 91841, 2009-Ohio-4365, Mr. Gies suggests the state did not provide

sufficient evidence that he packaged the baggie of 24 amphetamine tablets (found in the

bedroom nightstand). In Edwards, the court found insufficient evidence of trafficking

because the state, to show the defendant intended to sell the drugs, only provided evidence

of a scale and baggies found in the house, failing to provide sufficient evidence that the

defendant, and not the other cohabitant of the house, was the trafficker. Id. at ¶ 22.

       {¶22} Contrastingly, the state here provided much more than a scale and some

empty baggies. At trial, the officers testified about the items found in the bedroom: the bag

of amphetamine tablets discovered with other large bags of narcotics all similarly packaged,

the digital scale, the notebook listing the price for a pound of methamphetamine that

correlated with the amount of cash (over $4,500) found on Mr. Gies during arrest, and

stacks of additional empty baggies—all located near two loaded guns. Notably, the officers

discovered all these items in the bedroom Mr. Gies indicated was “our bedroom” in

response to the officer’s question about Ms. Vilas’s location. The same bedroom that had a

sign on the wall that read “Chris” and a mirror with “Allison loves Chris” written on it. And




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thus, based on the above evidence, the jury could find beyond a reasonable doubt that Mr.

Gies prepared the amphetamine tablets with intent to sell them.

       {¶23} As to his weight of the evidence challenge, Mr. Gies asserts more of the same,

suggesting that he was merely a visitor at the residence and that the state failed to show the

drugs were his. Yet, based upon the evidence already discussed above—his reference to “our

bedroom,” his first name written on the wall, the drugs and firearms found within his

bedroom correlating to the cash found on his person—and in light of the entire record and

credibility of the witnesses, we cannot say that the fact finder clearly lost its way and created

a manifest miscarriage of justice.       Therefore, we must overrule Mr. Gies’s second

assignment of error.

                                              IV.

       {¶24} For the foregoing reasons, we find that Mr. Gies’s two assignments of error

lack merit and are accordingly overruled. The judgment of the trial court is affirmed.

                                                                            Judgment affirmed.

MYERS, P. J., and WINKLER, J., concur.

Please note:

       The court has recorded its entry on the date of the release of this opinion




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