[Cite as State v. Terrell, 2017-Ohio-7097.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       CLARK COUNTY

 STATE OF OHIO                                      :
                                                    :
          Plaintiff-Appellee                        :   C.A. CASE NO. 2016-CA-32
                                                    :
 v.                                                 :   T.C. NO. 15CR263
                                                    :
 ANDRE TERRELL                                      :   (Criminal Appeal from
                                                    :    Common Pleas Court)
          Defendant-Appellant                       :
                                                    :

                                               ...........

                                              OPINION

                Rendered on the ____4th ___ day of _____August_____, 2017.

                                               ...........

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

ROGER SOROKA, Atty. Reg. No. 0082195 and JOSHUA BEDTELYON, Atty. Reg. No.
0087866, 503 South Front Street, Suite 205, Columbus, Ohio 43215
     Attorneys for Defendant-Appellant

                                              .............

DONOVAN, J.

        {¶ 1} This matter is before the Court on the Notice of Appeal of Andre Terrell, filed

May 6, 2016. Terrell appeals from his April 27, 2016 judgment entry of conviction,

following a jury trial on one count of trafficking in cocaine, a felony of the first degree, in

violation of R.C. 2925.03(A)(2), as set forth in count one of the indictment; possession of
                                                                                          -2-


cocaine, a felony of the first degree, in violation of R.C. 2925.11(A), as set forth in count

two of the indictment; and aggravated possession of drugs, a felony of the fifth degree, in

violation of R.C. 2925.11, as set forth in count three of the indictment. The indictment

also contained a forfeiture specification as to counts one through three.         The court

merged counts one and two and the State elected to proceed to disposition on count one.

The court sentenced Terrell to 11 years for trafficking in cocaine and one year for

aggravated possession of drugs, to be served consecutively.

       {¶ 2} Terrell was indicted on May 26, 2015, and he filed a motion to suppress on

August 6, 2015. The events surrounding Terrell’s arrest occurred at the Marriott Hotel in

Springfield, and in his motion to suppress, Terrell asserted that the arresting officers’

encounter with him there was without reasonable, articulable suspicion, that Terrell’s

consent to the search of his person was involuntary, that the search warrant the officers

obtained for Terrell’s hotel room was not supported by probable cause, and that Terrell

had an expectation of privacy in his hotel room. The motion was set for a hearing on

August 21, 2015, and on August 11, 2015, Terrell moved for an extension of time. The

hearing was rescheduled for October 2, 2015.

       {¶ 3} On that date, William McMahan testified that he previously worked as a

contract security guard for Elite Investigation and Security Group, and that he was so

employed on March 31, April 1, 2015. He testified that he was assigned to the Marriott

Hotel in Springfield at the time, having worked there for approximately five months.

McMahan stated that he was assigned to the third shift, from 11:00 p.m. until 7:00 a.m.

He stated that he was familiar with a typical evening at the hotel. The following exchange

occurred:
                                                                                       -3-


             Q. * * * And going to the evening of March 31st and the morning of

      April 1st, did you see something that led you to call the police department

      that evening?

             A. I did.

             Q. Just tell us everything that was going on that led up to you

      making the decision to call the police department that evening?

             A. I noticed some activity in the parking lot, a couple of different

      people showing up, and then they would meet with the person in the van,

      leave, and then he would leave and come back a few minutes later, go up

      to his room, come back down, and leave again, come back, go up. It

      became repetitious.

             It had happened one time prior before. I really didn’t pay that much

      attention to it at that time. This time it became a little more apparent.

             Q. And the time prior before, are you talking about a different day

      altogether?

             A. Yes.

             Q. And was that involving the same person?

             A. Yes.

             Q. And was that person a guest in the hotel?

             A. Yes.

McMahan identified Terrell as the person he observed.

      {¶ 4} When asked if Terrell’s behavior was unusual for the parking lot of the hotel,

McMahan responded, “Absolutely.” He testified, “To me, it looked like a meet, maybe
                                                                                          -4-


they were meeting up to either collect or supply with drugs, I’m assuming. The first time,

* * * the same vehicle had showed up prior to him coming down from his room, and then

this time that vehicle had showed up, as well. So I just had to assume that there was

something going on.” McMahan stated that it is not common for him to contact the police

in the course of his shift, and that the “main reason that I called was the odor of marijuana

when I walked by the van.”

       {¶ 5} McMahan stated that the police arrived at the scene at approximately 2:30

a.m., and that he was in the parking lot at the time. The following exchange occurred:

              Q. And at some point, are you there when the Defendant, Andre

       Terrell, is out of his vehicle and next to a police vehicle and they’re talking

       to him?

              A. Yes. Actually, when the police arrived, I stayed in my vehicle

       for, approximately, a minute just to make note of what time they,

       approximately, showed up. And then I got out and went over and stood

       closer to the police vehicle just to hear what was going on.

              Q. * * * And what, did you observe the interaction between the officer

       and the Defendant? Was the officer patting him down or what was going

       on?

              A. It was questioning while he was in the van at first, and then from

       what I witnessed, it was the odor of what was coming out of the van that got

       him out of the van.    Then it seemed to be the normal questions, do you

       have anything on you?

              Q. Did you hear the officer ask Mr. Terrell if he could search his
                                                                                       -5-


       person?

              A. Yes.

              Q. What was Mr. Terrell’s response?

              A. Yes.

              Q. Did you also, you knew that Mr. Terrell was a guest in the hotel;

       is that correct?

              A. I did.

              Q. And did you provide the police with information about what [sic],

       where he was staying at that time?

              A. From what the front desk had told me, yes.

       {¶ 6} When asked on cross-examination to describe Terrell’s comings and goings

on the night of his arrest, McMahan testified as follows:

              Normally about, it seemed it was around midnight that he had come

       down. There was a vehicle that pulled in to meet with him. It was a dark

       blue Tahoe, I believe. I didn’t really get to see what was going on as far as

       that goes, but when he did leave, he would leave for roughly 20 minutes

       and then come back, go up to the room for five, ten minutes, come back

       down, and leave, that was after that person had already left.

McMahan testified that he observed this sequence of events four times.          McMahan

stated that smoking is not allowed in the hotel, and that it was common for him to observe

guests smoking outside the hotel, as well as in their cars when it was cold outside.

       {¶ 7} Officer Jared Osborne testified that he is employed by the Springfield Police

Department, and that he conducts uniformed patrol, having been so employed for over
                                                                                       -6-


seven years. Osborne testified that he was dispatched to the Springfield Marriott on April

1, 2015, at approximately 2:30 a.m. Osborne stated that there “was a drug complaint

called in by staff at the Marriott that was relaying information for a security guard that

worked there, including specific information about the identity of a vehicle that was

involved.” The following exchange occurred:

             Q. And tell me what happens when you arrive on scene.

             A. I locate the vehicle that they had dispatched us out there to

      check. It was a white Dodge Grand Caravan. When I got into the parking

      lot, I immediately picked out the van. When I pulled up to it, I observed a

      male getting out of the passenger seat. I went up to the male, identified

      him as Aaron Minter, and as the door was opened, I could smell a very

      strong odor of raw, burnt marijuana coming from the car, or from the van.

      I just began asking Mr. Minter simple questions about what he was doing

      there, how long they had been there, and he didn’t really want to answer a

      whole lot.

             But he, ultimately, told me that he was there to visit Mr. Terrell. He

      was friends with him. The van is, kind of, tall. I had another officer that

      was there who was speaking with Mr. Terrell on the other side of the van,

      and I told him that I had smelled marijuana and was going to search the

      van.

             Upon searching the van, I found a bag with, it had a plastic container

      in it, contained scissors, and some M&M packages containing small bags

      of marijuana. At some point during this search, I heard over my portable
                                                                                -7-


radio that Officer McCarty had detained Mr. Terrell.

       I wondered what was going on. I didn’t see this but I had stopped

what I was doing, and he was placing Mr. Terrell in the back of the cruiser.

And he had showed me what appeared to be, I initially thought it might be

methamphetamine or some type of designer drug that was inside a clear

baggy [sic] that he had got from Mr. Terrell’s right front pocket.

       Q.   At that point in time, did Officer McCarty contact Detective

Mitchell on how to proceed from there?

       A. Correct.

       Q. And while he was doing that, did you speak briefly to Mr. Terrell?

       A. I did.

       Q. And what did you tell him?

       A. I read Mr. Terrell his Miranda Rights. He nodded, stated that he

understood. He initially told me that, I also heard him say that he was there

in Room 615, and he had told me that he was there to visit a female that

was at the hotel.

       When I started asking who the female was and how he gets ahold of

her, he didn’t want to tell me, and I remember also asking him if we were

able to get ahold of this female, would she give us consent to search the

room that she was in. And he said that he didn’t want to get her in trouble,

and, at that point, he didn’t want to answer any more questions.

       Q. * * * Did that all occur while he was in the back of the cruiser?

       A. Correct.
                                                                                        -8-


              Q. Were you involved in the search of his person at all?

              A. No.

              Q. And Officer McCarty had the primary interaction with Mr. Terrell

       at the scene up until that point?

              A. Correct.

       {¶ 8} Osborne testified that after Detective Mitchell responded to the hotel and

spoke to the officers on the scene, Mitchell left to obtain a search warrant. The following

exchange occurred:

              Q. Prior to that time, were you instructed to go secure Room 623 at

       the hotel?

              A.    I   was.    After   we   had   found   the   suspected    meth-

       amphetamine/designer drug, after calling Detective Mitchell I went up to the

       room, initially checked it for people. That’s it. Left the room and stayed

       there until the search warrant was brought up.

              Q. Did the hotel give you access to the room or did you have to force

       entry by breaking the door?

              A. No. They gave us a key card to the room to gain access.

              Q. Was anybody in the room?

              A. No.

              Q. Did you search through any of the areas in the room or were you

       just looking for people to make sure that nobody was able to destroy

       anything?

              A. I was just looking for people. I didn’t open anything or touch
                                                                                      -9-


      anything.

      {¶ 9} On cross-examination, Osborne testified that Minter was exiting the front

passenger seat of Terrell’s van as Osborne pulled up to the vehicle. Osborne stated that

he believed the vehicle was a rental. He stated that he did not ask permission to search

the van. At the time, he testified that McCarty was on the driver’s side of the van.

Osborne stated that he could hear McCarty and Terrell talking on the other side of the

van, but he could not make out what they were saying. Osborne stated that he did not

hear Terrell consent to a search of his person.

      {¶ 10} According to Osborne, Terrell’s room was on the sixth floor. When asked

why he proceeded to the room, Osborne responded, “To, basically do a sweep of the

room to make sure that there was nobody inside of it and exit the room. After that, just

stayed there so nobody could gain access to the room while they were in the process of

obtaining the search warrant.” The following exchange occurred:

             Q. Did you have any reason to believe there were other people in

      the room?

             A. I didn’t know, and that’s why I done that.

             Q. But nobody had ever said that there were other people in the

      room; is that correct?

             A. No.

             Q. And were you, did you have any reason to believe that any

      crimes were being committed in the room at that point?

             A. There was, I believe, personally believe that there was some

      type of drug activity going on in there because the Caravan smelled like
                                                                               -10-


marijuana. Mr. Terrell and Mr. Minter are both career criminals for being

drug dealers. There was a security guard telling us that he thought there

was drug activity going on between the two of them with contraband. I

believed that there was some type of trafficking going on inside the room.

       Q. * * * And the specific room, could you smell marijuana emitting

from the hotel room?

       A. No. I couldn’t smell marijuana coming from the room.

***

       Q. And why did you, I guess, classify Mr. Minter and Mr. Terrell as

career criminals. How do you qualify that?

       A. That’s just something that we identify certain people with in our

department with their prior activity.

       Q. * * * And when you say prior activity, what do you mean

specifically?

       A. If he’s been arrested for possession, dealing drugs before.   It’s

just something that our dispatcher would notify us of when we were, if we

were to go out and run somebody’s name and check them for warrant.

       Q. What did you hear from outside of Mr. Terrell’s room, Room

623? Could you hear any noises coming from inside the room?

       A. No.

       Q. So you had no reason to believe somebody inside was in need

of assistance or anything like that; is that correct?

       A. That’s correct.
                                                                                      -11-


              Q. Did you suspect that there were armed individuals in the room

       for any reason?

              A. No.

              Q. So I guess to go back to your previous testimony, your intention

       was to go in the room and do what?

              A. Just make sure there was nobody inside of the room to destroy

       anything that would be inside.

              ***

              Q. * * * And how long were you in Room 623 at this point?

              A. I would say I was in there less than 10 seconds.

              Q. And how much prior in time to the search warrant coming did

       you enter Mr. Terrell’s room?

              A. It was a couple hours. I don’t recall exactly how long it was.

       {¶ 11} Detective Gerald Mitchell testified that he is assigned to the intelligence

unit, which is commonly referred to as the drug unit, in the Springfield Police Division,

having been so employed for over three years. He testified that on April1, 2015, at about

3:00 a.m., he received a phone call from McCarty about suspected drug activity at the

Springfield Marriott.    He stated that he learned that the officers had recovered “a

substance that they believed was meth, as well as some marijuana.”         According to

Mitchell, there “had been some disagreement between, or difference between what room

[Terrell] said he was in and what room the hotel said he was actually in, and I asked

Officer McCarty to inform Mr. Terrell of his rights and ask him, again, what room he was

in and if he would give consent to search that room.” Mitchell testified that he then
                                                                                       -12-


received a return call from McCarty advising him that “Officer Osborne had informed and

asked [Terrell] what room he was in. Ultimately, he said he was not a guest at the hotel,

that he was meeting a female in Room 615.”

      {¶ 12} Mitchell stated that he later responded to the hotel, and the following

exchange occurred:

             Q. * * * What did you do when you got on scene?

             A. First thing I did was I spoke with Officer McCarty, took some

      photographs of the evidence that he had collected, and, at that point, I

      believe I searched the van. My primary goal was to find the hotel key, hotel

      key for 623.

             Q. So you had been informed that there was a room key at some

      point and you were looking to see if you could find it in the van?

             A. Yes. Officer McCarty advised that upon initial contact with Mr.

      Terrell, Mr. Terrell showed him a room key that said Marriott on it, and after

      he had arrested him, he could not find that same key.

             Q. Did he also show you the items that were found in Mr. Terrell’s

      pockets?

             A. He did.

             Q. Describe those items for me.

             A.      There was a crystalline substance, and there was some

      marijuana. I don’t recall whether that was from his pockets or from the

      vehicle. There was a notepad or notebook with what appeared to be dollar

      amounts written on it and some names.
                                                                                        -13-


             Q. And did you attempt to conduct what is commonly called a field

      test on the crystalline substance?

             A. I did.

             Q. And what were the results of that?

             A. The results indicated the presence of either amphetamines or

      analogues of MDMA.

             Q. And the notebook that was in his pocket, was one of the names

      written on there Ills, I-L-L-S?

             A. I don’t recall how it was spelled, but it was Ills, yes.

             Q. Do you know a person who goes by the name of ILLS in the city

      of Springfield?

             A. I do.

             Q. And who is that?

             A. Aaron Minter.

      {¶ 13} Mitchell stated that he was aware that Terrell had been advised of his rights,

and that he spoke to Terrell in the back of the cruiser and asked if he would consent to a

search of his room. According to Mitchell, Terrell advised him that he wanted to speak

to his attorney. He testified that Terrell did not appear to be intoxicated. The following

exchange occurred:

             Q. You then sought to get a search warrant for hotel room 623,

      correct?

             A. Right.

             Q. And prior to that, knowing that you were intending to do so, about
                                                                                        -14-


      how long would that have taken or how long did it take to get the search

      warrant from that time until it was actually signed? * * *

             A. I remember getting to the hotel around 4:00 a.m. I believe we

      executed the search warrant after 9:00 a.m., so we would have had the

      search warrant signed sometime between 8:00 and 9:00 after a judge would

      have arrived at work.

             Q. And because of that long period of time, were you interested in

      securing the hotel room?

               ***

               A. Yes.

             Q. And did you enter the room and secure it so that nothing could

      leave before the search warrant was obtained?

               A. I did not. Sergeant Bennett did.

             Q. But you were aware that that had taken place?

             A. I was aware, yes.

On cross-examination, Mitchell stated that he did not find a room key in the van in the

course of his search.

      {¶ 14} Officer Tyler McCarty testified that he has been a police officer with the

City of Springfield for over six years. He stated that on April 1, 2015, he was dispatched

to the Springfield Marriott, and that the “call was there was a white van parked on the lot

with two occupants. They looked suspicious. They kept going in and out of the hotel to

the van, and the caller thought it might have been drug activity.” The following exchange

occurred:
                                                                                 -15-


       Q. * * * Tell us what happens when you arrive on scene. What do

you see?

       A. I pulled in right after my partner, Officer Osborne. He was the

first one to pull up to the van, located him right away. As I was pulling up

behind him, I saw a driver getting out, and there was a passenger getting

out on the passenger front side.

       Officer Osborne went up to the passenger side. I went up to the

driver’s side. As I was coming up to the driver’s side, I made contact with

Mr. Terrell. He already had his door shut, and I just started talking to him.

       ***

       Q. Do you recall your conversation?

       A. As soon as I started walking up to Mr. Terrell and talking to him,

he told me that he was [a] guest at the hotel. He told me he was staying

there. There was a security guard for the hotel sitting in his car in the lot,

and he started pointing to the security guard saying, he knows I’m staying

here. He’s seen me in and out the past few days.

       Q. Did he show you a room key of some kind, as well?

       A. He did.

       Q. And do you recall what room he told you he was staying in?

       A. I believe he said 615.

       Q. And around that time, did Officer Osborne inform you he was

going to search the vehicle?

       A.    Yes.   Officer Osborne told me he could smell the odor of
                                                                                         -16-


       marijuana coming from the vehicle and that he was going to search it.

              Q. And what did you do with Mr. Terrell at that time?

              A.   I asked Mr. Terrell if I could check to make sure if he had

       anything on him, any weapons, or drugs or anything of that nature. He said

       he didn’t. I asked if he minded if I searched him. He said he didn’t. I

       asked Mr. Terrell if he actually minded if I checked inside his pockets. He

       said he did not. And the security guard was standing next to me the whole

       time that went on.

              Q. And was Mr. Terrell in handcuffs at that point in time?

              A. No, sir.

              Q. And then you checked his pockets after he gave you permission

       to do so?

              A. Yes.

              Q. Did you find anything inside?

              A. I found a small M&Ms bottle with a small plastic baggy [sic] of

       marijuana, and then the smaller right pocket I found a bag of a rocklike

       substance that we were not sure what it was at that time.

McCarty stated that Terrell did not make any statements about the substance, and that

McCarty did not ask any questions about it.

       {¶ 15} McCarty stated that the “security guard had came back out after going

inside and checking the rooms, and he told us that, I think it was Room 623 that Mr. Terrell

was actually staying in.” The following exchange occurred regarding the search of Room

623:
                                                                                    -17-


             Q. And at some point did you actually enter the room to make sure

      nobody was inside?

             A. Yes.

             Q. How did that actually happen? * * *

             A. We were told just to secure the room. If we heard anybody in

      there or thought anybody was in there, you know, just briefly walk through

      and check for people, not anything else. We stood out of the room for

      about a minute, a couple of minutes or so, approximately.

             And we could hear what we thought was people talking inside so we

      knocked on the door several times and asked people to come out. Nobody

      was answering, nobody was responding, then we entered the room, briefly

      walked through to make sure there was no people in there, and it was

      actually, the TV was on and the volume was down kind of low.

             Q. And did you leave the room and wait until a search warrant had

      actually been obtained before any further searching occurred?

             A. Yes.

      {¶ 16} On cross-examination, McCarty was shown a copy of an “inner office”

completed by him on April 1, 2015, and he was given an opportunity to read it over. The

following exchange occurred:

             Q. * * * So in the report, what did you say Mr. Terrell, what his

      response was to whether or not you could search him?

             A. I then asked Mr. Terrell if he had anything illegal on his person

      and he replied that he did not. I asked Mr. Terrell if I could check his
                                                                                      -18-


      pockets, and he stated that he did not care. I then asked Mr. Terrell if I

      could reach into his pockets to check them, and, again, he replied that he

      did not care.

               Q. Did you take, I don’t care, as an affirmative response that you

      could?

               A. Yes.

               Q. Officer, was this a weapons pat down?

               A. Just was pat down for anything illegal. So I asked if I could

      search him before I even patted him down or looked into his pockets.

               Q. So this was a search for illegal contraband?

               A. Yes.

               Q. And what was the cause for this search for illegal contraband

      again?

               A. Officer Osborne smelling marijuana coming from the vehicle.

McCarty stated that Terrell was not under arrest at the time of the pat down, but that he

was being detained based upon the odor of marijuana from the van.

      {¶ 17} The following exchange occurred regarding Room 623:

               Q. And you rode up the elevator how many floors?

               A. Six.

               Q. And did you believe that, and what was the intent of going into

      the room at that point?

               A. Just to secure it.

               Q. And, well, secure it from what?
                                                                                 -19-


         A. Make sure there was nobody in there that could destroy any

possible evidence before we could search it.

         Q. And did you have any reason to believe there was anyone in

there?

         A. Yes.

         Q. And what was that?

         A. Mr. Terrell said, at some point, he was with some female in the

room.

         ***

         Q. How long were you in the room?

         A. Maybe a minute or less.

         ***

         Q. And what did you do when you entered the room? Can you just

walk us through that?

         A.    I entered the room, I believe, to the right.    There was a

bathroom. You just kept going, and there was a couple beds and then it

dead-ended into the wall. So just walk straight and looked in between the

beds and the bed and wall, came back out, and I believe somebody just

walked in the bathroom and checked in the shower to make sure nobody

was in there and we left.

         Q. * * * And how many people were in the room with you at this point?

         A. I can’t remember.

         ***
                                                                                      -20-


             Q.   Did you notice anybody opening drawers or looking in any

      cabinets or - -

             A. No.

             Q. * * * If you were searching for people, did you knock on the door

      prior to entering the room?

             A. Yes.

             Q. Did you receive any response from inside?

             A. No.

             Q. Why did you, at that point, not, I guess, just stand guard at the

      door? Why did you feel the need to enter the room?

             A. Because we could hear voices inside, very faint voices, so we

      thought maybe somebody was inside.

             Q. And those voices were emitting from the television set; is that

      correct?

             A. Yes.

             Q. So when you opened the door and saw that the television set

      was on, I guess why, at that point, did you feel it necessary to continue to

      search the room?

             A. Because we were making sure that that was the only thing they

      were coming from was the TV.

      {¶ 18} On recross-examination, the following exchange occurred regarding the pat

down search of Terrell: “Q. * * * After testimony and you reading your report again, did

Mr. Terrell at any point give an affirmative yes to the question whether or not you could
                                                                                         -21-


search him? A. No. He didn’t give an affirmative no either.”

       {¶ 19} At the conclusion of the hearing, the following exchange occurred:

              MR. PICEK: The State would have no further witnesses. We would

       have the search warrant, which has been marked as State’s Exhibit No.1.

       Your Honor signed that search warrant. At least, my understanding is, at

       least, that portion of the motion to suppress should go to another judge to

       rule on.

              They’re [sic] challenged to whether the search warrant should have

       been issued. * * *

              THE COURT: * * *With respect to the search warrant, whether or

       not that should have been issued, certainly I’ll recuse myself from that

       portion of the motion and refer that to the administrative judge who will most

       likely assign that to Judge O’Neill to review. * * *.”

       {¶ 20} On October 5, 2015, the trial court issued an Entry that provides, “* * * the

Court finds that a portion of the subject of the defendant’s motion is a search warrant that

this judge signed. THEREFORE, this case is TRANSFERRED to the Administrative

Judge * * * to assign to another judge for the limited purpose of hearing the portion of

defendant’s motion to suppress that deals with the search warrant. * * * .”

       {¶ 21} On October 13, 2015, the “State of Ohio’s Closing Argument for

Suppression Hearing” was filed. The State asserted that the arresting officers had a

reasonable suspicion to detain Terrell, that he consented to a search of his person, and

that the search of his vehicle was supported by probable cause. On October 16, 2015,

Terrell filed “Defendant’s Brief in Support of Suppression.” On October 27, 2015, the
                                                                                        -22-


court issued an Entry that provides that “Defendant’s motion to suppress is OVERRULED

for the reasons set forth in State’s written closing argument.” Terrell filed a Notice of

Appeal of the trial court’s decision, which this Court dismissed on the State’s motion to

dismiss for lack of a final appealable order.

       {¶ 22} On November 9, 2015, a hearing was held on the remaining portion of

Terrell’s motion to suppress before the newly assigned judge. The following exchange

occurred at the start of the hearing:

              MR. PICEK: A hearing was held before Judge Rastatter, regarding

       the parts of the motion that do not deal with the search warrant. Mainly,

       regarding an encounter with the Defendant and law enforcement that was

       in the parking lot of a hotel and the search of his person, at that time. That

       has been ruled on in the State’s favor. The only issues remaining were the

       Defendant’s motion to suppress are what, I believe, [sic] are under

       subsections F and G, regarding the search warrant.         It’s beginning on

       page, 13, I believe, of the Defendant’s motion.

              THE COURT: Section F says, the search warrant that was created

       by Detective Mitchell was defective. And G says that the Defendant has

       an expectation of privacy at the hotel room and that the search of the hotel

       room was unconstitutional. Those are the two parts of the motion to be

       presented, the argument before the court today.

       {¶ 23} A copy of the search warrant for room 623 at the Marriott was marked as

an exhibit, along with an accompanying affidavit. The State indicated that, “[r]egarding

whether the Defendant has [an] expectation of privacy in his hotel room, this room was
                                                                                          -23-


checked out under his name and it is, obviously, the State’s position that it is his room,

so we’d agree. But, they had a search warrant.” The State noted that the “remainder

of the challenge of the search warrant is solely regarding whether there was sufficient

probable cause.”

       {¶ 24} After a discussion off the record, the court indicated its understanding that

the parties agreed to submit the matter to it based upon the exhibit and the written

arguments already submitted. The State indicated that this “is a review of whether or not

the issuing Magistrate had substantial basis on which to find probable cause. I don’t see

any need to argue any further. The State believes that there is more than sufficient

evidence contained in the affidavit for the Court to find probable cause.”

       {¶ 25} The April 1, 2015 affidavit of Detective Gerrald Mitchell provides as follows:

              * * * Detective Gerrald Mitchell, Jr. of the Springfield Police Division,

       who being duly sworn according to law, deposes and says that on the 1st of

       April, 2015, Hotel Room 623 at the Courtyard by Marriott located as 100 S.

       Fountain Ave., Springfield, Clark County, Ohio, does contain certain

       evidence of criminal acts, to wit: Heroin, cocaine, marihuana, controlled

       substance analogs, drug paraphernalia, items used to transport, package,

       or prepare drugs for sale, money, financial records of drug trafficking

       activity, items showing an ownership or possessory interest in the residence

       and any items located therein, instrumentalities and proceeds of drug

       trafficking, firearms, cellular telephones (contact lists, text messages, call

       history, photographs, videos, application data, location data, and other

       documents and data) and any other evidence of trafficking or possession of
                                                                                  -24-


drugs in violation of sections 2925.03 and 2925.11 of the Ohio Revised

Code and Affiant further says that he believes, and has good cause to

believe, that such things are concealed at the above described location.

         The facts upon which Affiant bases said belief are:

         1. Affiant, Detective Gerrald Mitchell Jr., is employed by the City of

Springfield Police Division and has been so since January of 2007. I have

been assigned to the Springfield Police Intelligence Unit from May 2012 to

the present date. I have a Bachelor of Science Degree in Criminal Justice

Leadership from Urbana University.        I have successfully completed the

Drug Enforcement Administration’s Basic Narcotics Investigator course. I

have also received training to forensically extract data from mobile devices.

My certifications include Cellebrite Certified Logical Operator and Cellebrite

Certified Physical Analyst.

         2.   The Springfield Police Division has been investigating Andre

Terrell (DOB 7/17/1978; * * *) for trafficking in drugs over the past several

years.

         3. In 1998, Terrell was sentenced to 3 years in prison in Clark

County Case 98-CR-0477 for possession of drugs (crack). In 2003, he was

convicted of possession of cocaine and sentenced to 3 years community

control.      In 2004, he was convicted of trafficking in drugs and again

sentenced to 2 years of community control.

         4. In July 2014, Sgt. Bennett and I met with a confidential source

(CS #1261). CS # 1261 has provided information in the past about drug
                                                                                 -25-


traffickers which has led to the issuance of a search warrant, seizure of

significant amounts of illegal drugs, and convictions. CS #1261 stated that

Terrell was still currently selling illegal drugs in the Springfield area,

including cocaine, and provided a current phone number for Terrell.

       5. I also spoke to a confidential source (CS #1251). CS #1251 in

the past has provided information that Terrell sells cocaine and heroin.

       6. Within the past month, CS #1251 told me that Terrell was still

currently selling heroin.

       7. In February 2015, I contacted CS #1261 and CS #1251 to ask

for any current phone numbers for Terrell. CS #1251 provided the same

phone number CS #1261 had previously provided in July of 2014, as well

as a second, new number. CS #1261 provided me with the same second,

newer number as CS #1251.

       8.    On April 1, 2015 at approximately 2:30 AM, Officers Tyler

McCarty and Jerod Osborne of the Springfield Police Division were

dispatched to the Marriott Hotel at 100 S. Fountain Ave., Springfield, Clark

County, Ohio, on report of two men in a white van in the parking lot, one of

whom had been recently staying in the hotel, and he was seen regularly

going from the hotel back out to the car. The caller also stated that they

believed there to be drug activity going on based on what they were

observing.

       9. Officers arrived on scene shortly after being dispatched and

approached a White Dodge Minivan with Illinois Plate P42-1003.             The
                                                                                 -26-


passenger, later identified as Aaron Minter, was getting out of the vehicle

as Officer Osborne arrived.      Officer Osborne quickly approached the

vehicle and noticed the odor of raw and burnt marijuana. Officer McCarty

then arrived as the driver, later identified as Andre Terrell was exiting the

vehicle and shut the driver’s door. Terrell immediately stated that he was

a guest at the hotel, and pointed to a security guard, stating, “He’s seen me

here for the past few nights he can tell you.”

       10. Officer McCarty asked Terrell if he had a key, which Terrell

showed to him. The key said “Marriott” on it. He then handed the key

back to Terrell. Officer McCarty asked which room Terrell was in and he

stated “615.” Officer Osborne indicated that he was going to search the

vehicle based upon the plain smell of marijuana giving probable cause to

search the vehicle.    Officer McCarty asked Terrell if he could check if

Terrell had anything illegal on him, he said he did not care. Officer McCarty

asked if he could actually go into Terrell’s pockets, again he said he did not

care. Officer McCarty located in his left pants pocket a cylindrical shaped

M&Ms container which contained a small bag of marijuana. In his right

watch pocket he found a plastic bag containing what he thought may be

methamphetamine. Terrell was placed into handcuffs at that time. Officer

McCarty also located a notebook in his pocket, discussed below, which

contained a ledger.      Terrell was also in possession of two cellular

telephones.

       11. Later, the suspected methamphetamine was field tested, and
                                                                              -27-


the field test indicated the presence of either amphetamine or analogs of

MDM (ecstasy).

      12.    Inside the vehicle, Officer Osborne located another box

containing additional M&Ms containers with marijuana inside. At that time,

Minter was also placed in handcuffs and placed in a police vehicle. Officer

McCarty made contact with hotel staff and was advised that Terrell was

actually staying in Room 623, and the room was currently booked in his

name. Officer McCarty contacted me at that time for advice on how to

proceed.

      13. Officers then returned to speak to Terrell and Officer Osborne

advised him of his rights. Terrell was again asked what room he was in,

and he again said 615. Officer Osborne then asked for consent to search

the room, and Terrell then said that he was actually not staying there, but

was supposed to meet some girl who has a room there, but she hadn’t

shown up yet. When asked, Terrell stated he did not know the female’s

name, or how to get ahold of her. He then stated he did not have a room at

the hotel, but that he previously was staying in Room 615.

      14. The hotel provided me with copies of the invoices for Terrell’s

current and recent stays at the hotel. The records showed that Terrell

stayed at the Courtyard by Marriott, 100 S. Fountain Ave., checking in at

8:12 PM on March 25, and checking out at 1:20 PM on March 26, staying

in Room 615. He then checked in again on March 31, 2015 at 10:32 PM,

this time staying in Room 623.
                                                                                    -28-


       15. I arrived on scene at approximately 4:00 AM. Officers showed

me what they had found on Terrell’s person and I conducted the above

mentioned field test. I located in Terrell’s wallet a key card for a Marriott

hotel; however, hotel staff indicated that the key was not for the hotel at 100

S. Fountain Ave. Officer McCarty also indicated that the key I found in the

wallet was not the key that Terrell had shown him earlier. I also located in

Terrell’s belongings the ledger that Officer McCarty had located in Terrell’s

pocket, with listed names of known drug traffickers in Springfield, with

different numbers, presumably dollar amounts listed next to their names,

and with several lines crossed out, and the same name appearing multiple

times. A photograph of a page of the ledger is attached hereto as Exhibit

A. Of note are the lines reading “Juve 1000,” multiple lines with the name

“Ills,” “Tylic – 290,” “Dew 1500”, “Sam”. “Juve” is a known nickname for

Jerrell Fleming, who is known to me to be a drug trafficker in Springfield.

“Ills” is a known nickname for Aaron Minter, the passenger in the vehicle

with Terrell. “Tylic” is likely to be Tilic Beal, also a known drug trafficker in

Springfield. The numbers likely indicate dollar amounts possibly owed to

Terrell for various types and amounts of illegal drugs.

       16.   I then searched the van in which Terrell and Minter were

located. My goal was to located [sic] the room key that Terrell had shown

Officer McCarty. I located some empty plastic bags in different places

inside the van. I also located a box of freezer bags sitting on top of one of

the seats in the rear of the van. Under the dashboard area, I saw three
                                                                                   -29-


coffee cups wrapped in plastic like the kind commonly found in hotel rooms.

In the far rear storage area of the van, there were multiple plastic grocery

bags, and approximately 12-15 tennis balls. Most [of] the tennis balls had

holes cut into the hollow interior, and at least one was cut further open. I

opened up the tennis balls and found nothing inside them.             I located

nothing else inside the van that could explain why the tennis balls were

present; however, I do believe that they could be a unique method of

covertly transporting illegal drugs. I did not locate the Marriott key card that

Terrell showed Officer McCarty. The key card was not found on Terrell’s

person or in his belongings.

       17. The security guard at the hotel provided further information.

He stated that the “large male,” referring to Aaron Minter, had arrived in the

vehicle which was currently parked next to the van. That vehicle is

registered to another person with the last name Minter. He stated that on

March 25, the same evening as Terrell’s previous stay at the hotel, he

observed suspicious behavior by Terrell in the parking lot of the hotel. He

observed Terrell meet with a Blue Tahoe in the parking lot, and Terrell and

the Blue Tahoe would repeatedly leave and return after about 20-30

minutes, go up to the room, and also would sit in the vehicles in the parking

lot for periods of time. Due to his suspicions, the security guard drove

through the parking lot a few times, upon which Terrell approached him on

foot and said “So you know I’m a guest here, in case you were going to call

the cops.”
                                                                                  -30-


       18. The security guard described similar behavior on the night of

March 31, again involving the same Blue Tahoe, as well as Aaron Minter

and his vehicle. Again they went up to the room, then they would leave for

30 minutes and come back, multiple times, and sit for around 20-30 minutes

in the vehicles in the parking lot at night. This suspicious behavior led the

security guard to believe drug activity was occurring, which led him to

contact law enforcement.

       19. Based upon all of the foregoing, including Terrell’s attempt to

conceal that he had a hotel room, his inconsistent answers regarding the

hotel room, his apparent attempt to hide or get rid of the key to Hotel Room

623, the observations of the security guard at the hotel, the ledger in

Terrell’s pocket, and all of my training and experience, I believe it is highly

likely that Hotel Room 623 at the Marriott at 100 S. Fountain Ave.,

Springfield, Clark County, Ohio, will contain illegal narcotics and other

evidence and proceeds of trafficking in drugs by Andre Terrell.

       20. The following assertions are all based upon affiant and other

detectives of the drug unit’s training and experience:

              • drug traffickers commonly use multiple cellular telephones

       to communicate with buyers and sellers of narcotics via text

       messaging and telephone calls, and said cellular telephones will

       often contain evidence of drug trafficking such as text messages,

       telephone calls, photographs, call history, application data, and other

       electronic documents;
                                                                                         -31-


                     • narcotics traffickers typically maintain on hand large

              amounts of U.S. currency in order to maintain and finance their

              ongoing narcotics business;

                     • narcotics traffickers maintain books, records, receipts, notes,

              ledgers, and other papers relating to the transportation, ordering,

              sale and distribution of controlled substances;

                     • drug traffickers commonly have in their possession, firearms

              used to protect and secure their property, narcotics, and money.

              Said Affiant further says that on or about April 1, 2015 Hotel Room

       623 at the Courtyard by Marriott located at 100 S. Fountain Ave.,

       Springfield, Clark County, Ohio, does possess and conceal said things, or

       some part thereof, at the place described above, then and there well

       knowing the same violates section 2925.03 and 2925.11 of the Ohio

       Revised Code as aforesaid.

       {¶ 26} In overruling the portion of Terrell’s motion addressed to the search warrant,

the court indicated as follows:

              The Court finds that the affidavit accompanying the aforementioned

       warrant contains sufficient indicia of probable cause to pass muster under

       the Fourth Amendment to the United States Constitution.

              Upon being presented with the information contained in the affidavit,

       a reasonably prudent person would believe that there is a fair probability

       that the place to be searched contained evidence of a crime. Therefore,

       the Court concludes that the issuing judge had a substantial basis for
                                                                                         -32-


       concluding that probable cause existed.

       {¶ 27} We note that on May 6, 2016, in his “Request to File Transcript,” Terrell

requested the transcripts of the two-day jury trial and of disposition. On July 8, 2016, the

transcript from the November 9, 2015 suppression hearing was filed. On July 13, 2016,

the video deposition of Megan Snyder and the deposition transcript were filed, along with

the trial transcript. On July 27, 2016, Terrell filed a “Motion for Extension of Time Within

Which to File Appellant’s Brief,” asserting that “an extension is necessary due to the

voluminous nature of the transcript; the need to supplement the record with exhibits and

suppression transcripts; and counsel will need sufficient time to review all of the

transcripts, and finalize Appellant’s Merit Brief.” Appellant’s brief was filed on September

1, 2016, pursuant to this Court’s order, and no request to supplement the record was

received from Terrell.

       {¶ 28} Terrell asserts four assignments of error herein. His first assignment of

error is as follows:

              THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S

       MOTION TO SUPPRESS WHEN THE AFFIDAVIT IN SUPPORT OF THE

       SEARCH WARRANT WAS FACIALLY DEFICIENT, OVERBROAD, AND

       LACKED PROBABLE CAUSE.

       {¶ 29} Terrell asserts that the “issuing judge improperly considered stale evidence

provided by Confidential Informants (‘CS’) in ruling that the search warrant contained

sufficient probable cause. Further, the dated prior convictions of Appellant listed in the

affidavit are stale and add no value to a probable cause determination.” Terrell asserts

that specifically, “paragraphs four through seven of Detective Mitchell’s affidavit contain
                                                                                          -33-


stale information obtained from confidential sources.” He asserts that the “affidavit also

fails to demonstrate any evidence that Appellant was engaged in a continuing course of

criminal conduct.”

       {¶ 30} Terrell argues further that in “addition to being stale, the information

provided by the confidential sources lacks any indicia of veracity, credibility, or basis of

knowledge of the sources; and Detective Mitchell fails to demonstrate the sources[’]

reliability through averment or corroboration.” According to Terrell, “statements from two

confidential sources and an unidentified caller allegedly from the Marriott Hotel were

included in the affidavit by Detective Mitchell. All three of these sources allege facts

which implicate Appellant in a crime, so the basis of their knowledge of the crime is called

into question.” Terrell argues that the “statements lack any degree of detail, do not

indicate that they are based on the first-hand knowledge or personal observation of the

source, and lack reliability.”

       {¶ 31} Regarding CS #1251, Terrell argues that based “on the information in the

affidavit, it is impossible to determine if the CS was relating their own personal knowledge,

or passing on a rumor they heard on the street. The complete lack of detail or indication

of personal observation fails to demonstrate the source[’]s basis of knowledge, and

precludes a finding [of] probable cause.” Terrell asserts that the “affidavit contains no

averment from the affiant as to the past reliability of CS #1251,” and that the “affidavit

also lacks police corroboration to potentially cure any defects in reliability,” such as “the

use of a controlled buy.”

       {¶ 32} Regarding CS #1261, Terrell asserts that the information provided by him

or her “is as devoid of specifics or indications of the source’s basis of such knowledge as
                                                                                         -34-


that provided by CS #1251, but the affidavit does contain an averment to the reliability of

CS #1261.” According to Terrell, however, “even where an affiant specifically avers to

the past reliability of a source, probable cause may not be found where an affidavit

contains no factual basis for a source’s knowledge.”

       {¶ 33} Terrell asserts that State v. Dalpiaz, 151 Ohio App.3d 257, 2002-Ohio-7346,

783 N.E.2d 976 (11th Dist.), is “strikingly similar” to the matter herein. He asserts as

follows:

              The affidavit in the case at bar includes information from sources of

       even more doubtful reliability, and provides significantly less specific

       information than the informant in Dalpiaz.       The affiant states that the

       Springfield Police Division has been investigating Appellant for trafficking in

       drugs for several years. Affidavit, ¶ 2. Assuming this statement is true, the

       most significant piece of evidence obtained by the Springfield Police over a

       several year investigation is apparently that two confidential informants

       provided the same alleged phone number for Appellant.             Considering

       many lawful citizens who are not drug traffickers have phone numbers, that

       two sources provided the same phone number for Appellant is useless in

       demonstrating probable cause for the issuance of a search warrant; even if

       the Springfield Police had verified that the number the sources provided

       actually was Appellant’s.

       {¶ 34} Terrell next argues that “Detective Mitchell intentionally, or with conscious

indifference, presents several of his own inferences as empirical fact in the affidavit,”

namely “when he stated that the words in a notebook found in Appellant’s pocket were
                                                                                          -35-


the nicknames of specific individuals, that those individuals were known drug traffickers,

and that those drug traffickers were located in Springfield.” Terrell argues that Mitchell’s

conclusion “that the numbers in the notebook indicate money specific individuals owed to

Appellant for the sale of illegal drugs * * * involves an extremely complex and attenuated

logical leap.” Terrell asserts that “testimony given at trial indicates Detective Mitchell’s

inclusion of undisclosed inferences as empirical fact in the affidavit were acts of

malfeasance or misfeasance.” Terrell argues that “Beau Collins, a Detective with the

Springfield drug unit since April, 2009, stated that he believes that the nickname Juve is

associated with a man named Jermaine Fleming, and Jerrell Fleming goes by the

nickname ‘senior’. Trial Transcript, page 351, lines 18-19.”

       {¶ 35} Terrell argues that “Detective Mitchell attached one page of the notebook

to his affidavit, but omitted two others.”   He asserts that the “existence of these pages

is never mentioned in the affidavit, nor were they submitted to the magistrate.” Terrell

concludes that the “omission of these pages, along with Detective Mitchell’s undisclosed

inferences, deprived the magistrate of the opportunity to independently review the

evidence and form his own inferences based upon the totality of the circumstances.”

       {¶ 36} Terrell next asserts that the “affidavit in support of the search warrant

submitted by Detective Mitchell contains no information indicating that Room 623 was

being used by Appellant for drug trafficking.” Terrell asserts that the matter herein is

“strikingly similar” to State v. Perez, 2015-Ohio-1753, 32 N.E.3d 1010 (2d Dist.). Terrell

argues that therein “this Court held that an individual’s possession of a significant quantity

of drugs or other evidence of drug trafficking does not establish probable cause to search

their home without some additional evidentiary link.” Terrell asserts as follows:
                                                                                           -36-

              * * * Unlike the defendant in Perez, Appellant was not found with any

       large amount of drugs; no evidence of an investigation of Appellant at any

       other location is included; no reliable informant provided any specific

       information about illegal items in Appellant’s possession, the affidavit does

       not indicate that any unusually large amount of cash was found on Appellant

       when he was searched outside his van; and the affidavit does not even

       allege that anyone witnessed Appellant actually selling drugs.

              The sole evidence of Appellant’s actual activity inside the hotel is that

       a security guard saw Appellant enter and exit the hotel a number of times;

       and sit around in his vehicle for 20-30 minutes at a time, sometimes with a

       guest. * * * Observed conduct that is consistent with innocent as well as

       criminal activity creates, at best, a suspicion of illegal activity, and is not

       sufficient to establish probable cause.

       {¶ 37} Finally, Terrell asserts that the good faith exception to the exclusionary rule

does not apply herein. He argues that the “sheer number of deficiencies and the overt

lack of probable cause make it clear that no reasonable police officer acting in good faith

could have relied on the warrant.”

       {¶ 38} The State responds that “the search warrant explains the ongoing drug unit

investigation that relate[s] to Appellant and his history of drug related activity.       This

historical information is provided to explain why Appellant’s activity observed on the

evening in question shows that he was engaging in drug trafficking and not simply going

to his car to smoke.” The State argues that the “historical information about Appellant’s

drug activity is provided to give context to the action observed on the evening in question.”
                                                                                         -37-


The State relies upon the testimony of the security guard at the suppression hearing of

October 2, 2015.

       {¶ 39} Regarding the confidential informants, the State asserts that “as to CS

#1261, the affidavit does include information related to the reliability of that source in

paragraph #4. The information from CS #1251 is used to corroborate the information

provided from CS #1261 and show the pattern of Appellant’s conduct related to drug

trafficking.” The State asserts that the “information from the confidential informants is

not used in the affidavit to show that he was trafficking in drugs on March 31, 2015 in

particular and therefore there is nothing in the record to suggest that the court improperly

considered the historical evidence from the confidential informants.”

       {¶ 40} The State further argues that Mitchell’s assertion in the affidavit that the

ledger retrieved from Terrell contained information about known drug dealers “is not an

inappropriate inference to be made by a drug unit detective familiar with the known drug

dealers in Springfield.” According to the State, “this Court cannot consider testimony from

trial when reviewing suppression rulings.”

       {¶ 41} The State asserts that the matter herein is distinct from Perez, and that the

“evidence presented to the judge in the search warrant does provide a sufficient nexus

between Appellant’s trafficking activity and the hotel room.”       The State asserts that

“certainly the officers executing the search warrant in this case acted in good faith as they

were conducting a search pursuant to a search warrant signed by a judge.”

       {¶ 42} In Reply, Terrell asserts that the “state cannot create a continuing course of

conduct by arguing that, because Appellant was convicted of a drug offense eleven years

ago, he must still be involved in drug trafficking.” He asserts that his prior conviction
                                                                                       -38-


does not support the warrant. He asserts that “the only information, other than a phone

number allegedly belonging to Appellant, provided by CS #1261 was provided in July,

2014. The State fails to address the staleness of this information, and then argues that

unreliable information corroborates stale information.”

      {¶ 43} Terrell asserts as follows:

             * * * The affidavit allows a search of Appellant’s hotel room for

      evidence of drug trafficking, specifically including cocaine and heroin. The

      sole reference to either cocaine or heroin included in the affidavit stems

      from the statements of Confidential Sources.         It is axiomatic that an

      affidavit could not demonstrate probable cause to search for evidence of a

      crime that the affidavit makes literally no reference to. Considering there

      is no basis upon which the issuing magistrate could have relied in issuing a

      search warrant for cocaine and heroin; it is clear that, contrary to the

      assertion of the State, this historical information was improperly considered

      by the court.

             The state has admitted that the Confidential Source information was

      not even intended to demonstrate that Appellant was trafficking in drugs on

      the night in question. The State cannot show a sufficient nexus between

      the alleged crimes of possession of cocaine and heroin, and the hotel room

      in question, where the State admits that the only information in the affidavit

      even referencing cocaine or heroin does not create, and was never intended

      to create, such a nexus.

      {¶ 44} Terrell asserts that “Detective Mitchell included undisclosed inferences
                                                                                          -39-


regarding his conclusions that the words in a ledger found on Appellant were nicknames

of specific people” who were known drug dealers, and that the “State’s sole argument in

response is that Detective Mitchell’s inference regarding allegedly known nicknames was

not an inappropriate inference.” Terrell further argues that none of the pages of the

ledger “contain any overt references to narcotics, and none of them include dollar signs

or any other representation that the numerals are actual dollar amounts.” He asserts

that the inclusion of “only the page of notebook that supports his undisclosed inference

highlights his overt, and apparently successful, attempt to preclude the issuing magistrate

from making his determination based upon a full and fair review of the totality of the

circumstances.”

       {¶ 45} Terrell asserts that “there is absolutely no evidence connecting actual drug

activity to Appellant’s hotel room.” He asserts that there “was no large amount of cash

or drugs found on Appellant, in his vehicle, on Mr. Minter, or in Mr. Minter’s vehicle; yet

the State claims the perfectly legal activity of walking in and out of a hotel multiple times

demonstrates a sufficient nexus to connect Appellant and his hotel room to drug

trafficking.” Terrell asserts that the good faith exception to the exclusionary rule should

not be applied.

       {¶ 46} The Fourth Amendment provides that “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.” Crim.R. 41(C)(2) provides in part

that the “finding of probable cause may be based upon hearsay in whole or in part,

provided there is a substantial basis for believing the source of the hearsay to be credible

and for believing that there is a factual basis for the information furnished.”
                                                                                        -40-

      {¶ 47} As noted by the Supreme Court of Ohio, in State v. Castagnola, 145 Ohio

St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638, ¶ 34:

             Central to the Fourth Amendment is the probable cause requirement.

      While a probable cause determination for an arrest warrant is similar in

      nature to that for a search warrant, a search warrant inquiry is much more

      complex and presents special considerations.         2 LaFave, Search and

      Seizure, Section 3.1(b)(5th Ed. 2012). Special considerations to be taken

      into account when determining whether to issue a search warrant include

      how stale the information relied upon is, when the facts relied upon

      occurred, and whether there is a nexus between the alleged crime, the

      objects to be seized, and the place to be searched. Id., Section 3.7(a),(b),

      and (d).

      {¶ 48} As this Court has previously determined:

             “In determining the sufficiency of probable cause in an affidavit

      submitted in support of a search warrant, ‘[t]he task of the issuing magistrate

      is simply to make a practical, common-sense decision whether, given all the

      circumstances set forth in the affidavit before him, including the “veracity”

      and “basis of knowledge” of persons supplying hearsay information, there

      is a fair probability that contraband or evidence of a crime will be found in a

      particular place.’ ” State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640

      (1989), paragraph one of the syllabus, quoting Illinois v. Gates, 462 U.S.

      213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

             “In reviewing the sufficiency of probable cause in an affidavit
                                                                                        -41-


       submitted in support of a search warrant issued by a magistrate, neither a

       trial court nor an appellate court should substitute its judgment for that of

       the magistrate by conducting a de novo determination as to whether the

       affidavit contains sufficient probable cause upon which that court would

       issue the search warrant.” Id. at paragraph two of the syllabus.    “Rather,

       the duty of a reviewing court is simply to ensure that the magistrate had a

       substantial basis for concluding that probable cause existed. 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.

State v. Terrell, 2d Dist. Clark No. 2011-CA-57, 2013-Ohio-124, ¶ 8-9.

       {¶ 49} “Probable cause determinations are limited to the four corners of the

underlying affidavit.” State v. Hale, 2d Dist. Montgomery No. 23582, 2010-Ohio-2389, ¶

20.

       {¶ 50} We conclude that, viewing the totality of the circumstances, the affidavit in

support of the search warrant herein provided adequate probable cause for the issuance

of the warrant. Regarding Terrell’s assertion that his prior convictions constitute stale

information, we conclude that they provide background and context for the officers’

ongoing involvement in investigating Terrell, and bear some relevancy to Terrell’s conduct

that night.

       {¶ 51} Regarding paragraphs four through seven of the affidavit, we note that

Mitchell attested to the veracity of CS #1261, noting that he or she “has provided
                                                                                       -42-


information in the past about drug traffickers which has led to the issuance of a search

warrant, seizure of significant amounts of illegal drugs, and convictions.” While Terrell

asserts that the information regarding his phone numbers is stale, in February 2015, CS

# 1251 corroborated the phone number provided by CS #1261 in July 2014, as well as

an additional number that matched the second number also provided by CS #1261. Both

informants advised that Terrell was selling illegal drugs.

       {¶ 52} Most significantly, Terrell ignores the events of the night of his arrest.

Officers McCarty and Osborne were dispatched to the hotel on a report of suspected drug

activity. Upon Osborne’s approach of Terrell’s vehicle, he smelled marijuana, and he

retrieved marijuana and what he believed to be methamphetamine from Terrell’s person.

Mitchell also located a ledger, the contents of which, in his experience, were consistent

with drug trafficking, namely the names of known drug dealers next to what Mitchell

believed were dollar amounts representing money owed to Terrell for drugs.

Corroborative of the information provided by the confidential sources, Terrell was also in

possession of two cell phones. Additional marijuana was found inside Terrell’s vehicle.

Terrell initially stated that he was staying in Room 615, then stated that did not have a

room at the hotel but was there to meet “some girl” whose name he did not know.

Mitchell subsequently learned that Terrell was registered at Room 623, having previously

stayed at the hotel in Room 615 five days earlier. The security guard advised Mitchell

that he had personally observed Terrell engage in suspicious behavior that he believed

was drug activity in the hotel parking lot on March 26, 2015, and similar behavior on the

night of March 31, 2015. The guard advised Mitchell that Terrell and Minter on both

occasions “went up to the room, then would leave for 30 minutes and come back, multiple
                                                                                           -43-


times, and sit for around 20-30 minutes in the vehicles in the parking lot at night.”

       {¶ 53} In Dalpiaz, the police had evidence that Dalpiaz was cultivating marijuana.

Id., ¶ 28. As the Eleventh District noted:

                The affidavit attached to the July 7 warrant contains the following

       statements concerning [Chief Detective] Doak’s sources of information:

       “[t]he affiant has received information that [appellant] makes frequent trips

       both in the morning and evening hours * * *”; “[appellant] has been seen

       making these trips * * *”; “[appellant] is commonly known to carry a firearm

       on his side during these trips * * *”; “[a]ccording to confidential sources, this

       individual has not worked * * * for several years”; “[t]he Portage County

       Sheriff’s Office has received information that the cultivation of marijuana is

       [appellant’s] only source of income”; and “[w]e have received information in

       the past and currently know that [appellant] is known to booby trap the areas

       where he cultivates marijuana.” Nowhere does the affidavit suggest that

       this information was received from reliable sources. In fact, much of the

       information provided in the affidavit is not even attributed to a particular

       source or to particular sources.

                In view of the complete absence of any indication of the reliability of

       the sources that provided Doak with the information concerning appellant’s

       activities outlined in the affidavit, the affidavit failed to establish probable

       cause for the issuance of the search warrant, and appellant’s third

       assignment of error is well taken.

Id., ¶ 36-37.
                                                                                         -44-


       {¶ 54} We cannot conclude, as does Terrell, that the affidavit herein is “strikingly

similar” to that in Dalpiaz. The information in Mitchell’s affidavit is attributed to two

specific confidential sources, the observations of the security guard on March 26 and 31,

and the observations of McCarty, Osborne and Mitchell, who interacted with Terrell.

       {¶ 55} Regarding Terrell’s assertion that Mitchell presented his own inferences as

empirical fact, we disagree. Mitchell has been employed by the City of Springfield Police

Division since January 2007, and he has been trained in narcotics enforcement.

Mitchell’s averments, in paragraph 15 of the affidavit, regarding the known nicknames of

Minter and of specific drug traffickers in Springfield, are based on Mitchell’s personal

knowledge. Further, based upon his experience, it is a reasonable inference that the

numbers in the ledger alongside the nicknames “likely indicate dollar amounts owed to

Terrell for various types and amounts of illegal drugs.”

       {¶ 56} The distinction between the matter herein and Castagnola is instructive.

Castagnola admitted in a text message to “Source May” that he damaged the vehicles of

David Maistros, a prosecutor. Id., ¶ 3. The text message indicated that Castagnola

“ ‘[f]ound his address and went to his house * * *.’ ” Id., ¶ 6.   The affidavit provided to

obtain the search warrant paraphrased the exchange between Castagnola and “Source

May” in part as follows: “Castagnola then says that he found Maistros online in the clerk

of courts because he [Maistros] got a parking ticket several years ago.” Id., ¶ 8. “The

detective did not state in the search-warrant affidavit the internet-access capability or

other capabilities of Castagnola’s cell phone.” Id., ¶ 9. “Nor did the search-warrant

affidavit provide information, beyond the ‘online’ inference, to indicate that Castagnola

had conducted an online search for Maistros’s address or that a computer that was used
                                                                                          -45-

to conduct such a search was located in Castagnola’s residence.” Id. Upon execution

of the warrant, child pornography was found on one of Castagnola’s computers. Id., ¶

13.

      {¶ 57} The Supreme Court of Ohio determined in part as follows:

             In short, while there was probable cause to believe that Castagnola

      had searched for [the prosecutor’s] address, the method of his search was

      not clear.    We affirmatively reject the trial court’s assertion that in

      determining whether an affidavit supports probable cause to issue a search

      warrant, a magistrate can infer “online” activities by people of a certain age.

      We further reject the trial court’s supposition that statements sent by text

      message admitting criminal activity create a substantial basis for concluding

      that evidence of a crime will be found on a computer. Similarly, we are not

      inclined to leap to the conclusion that the information stored on a phone will

      necessarily be backed up on a computer. Although we are in the computer

      age, records of court activity still exist in paper form and are available to the

      public in clerk of courts’ offices around the state.

Id., ¶ 63. The Castagnola Court determined that “the affiant negligently usurped the

inference-drawing authority of the magistrate and * * * under the totality of the

circumstances, the search warrant was not supported by probable cause.” Id., ¶ 65.

      {¶ 58} Herein, Mitchell’s averments are based on his personal knowledge of the

identities of the nicknames of Minter and the drug traffickers, and his inference regarding

the purpose of the ledger, containing names and numbers, is not attenuated, as the

inference in Castagnola, but rather is reasonable based upon Mitchell’s experience.
                                                                                         -46-


Finally, we note that Mitchell attached the page of the ledger to the affidavit that he

believed to be relevant to his investigation, again based upon his experience.

       {¶ 59}    We agree with the State that Terrell’s reliance upon the testimony of Beau

Collins in the trial transcript to attempt to discredit Mitchell’s reasonable inferences is

misplaced. In State v. Harris, 2d Dist. Montgomery No. 26810, 2016-Ohio-7097, ¶ 3, this

Court emphasized that “when reviewing suppression rulings, we consider only the

evidence before the trial court at the suppression hearing; we cannot consider any

additional evidence presented at a subsequent trial.”

       {¶ 60} Regarding Terrell’s assertion that the affidavit lacked a nexus between the

drugs found on his person and in his hotel room, we disagree. In Perez, upon which Terrell

relies, this Court noted as follows:

                The affidavit in support of the June 27 warrant indicates that Perez

       was involved in drug trafficking and that evidence of that trafficking was

       located in his home. He also used his truck to conduct drug transactions

       away from his home. Upon the search of Perez’s truck and subsequent

       investigation, police discovered that Perez recently rented a storage unit at

       the Stop-N-Lock on Linden Avenue.            Based on this information, a

       reasonable police officer might suspect that the previously-seen, but not yet

       located weapons and additional evidence of drug trafficking might be found

       in the storage unit. However, a reasonable belief, without some evidentiary

       support, is not enough for a search warrant.

Id., ¶ 19.

       {¶ 61} Unlike in Perez, we conclude that there is sufficient evidentiary support of a
                                                                                         -47-


nexus between the alleged crime of drug trafficking, the objects to be seized, and Room

623. As noted above, Terrell was the subject of a drug trafficking investigation, and the

security guard reported activity consistent with drug trafficking to Mitchell occurring on

two occasions, namely March 25 and the night of Terrell’s arrest. It was reasonable to

infer that in the course of his comings and goings, as described by the security guard,

Terrell transported drugs to purchasers. While the amount of drugs retrieved from Terrell

was not large, his ledger and his possession of more than one cell phone suggest an

ongoing drug trafficking activity. His evasive answers about his room further suggest the

potential presence of contraband that he sought to conceal. Finally, Mitchell confirmed

that Terrell was the registered guest of Room 623 on the night of his arrest, and the

registered guest of Room 615 on March 25.

       {¶ 62} For the foregoing reasons, and deferring to the magistrate’s determination

of probable cause, we conclude that the facts in the affidavit provided a substantial basis

for finding probable cause to believe that drugs likely were present in Room 623.

Accordingly, we need not address Terrell’s assertion regarding the good faith exception.

Terrell’s first assignment of error is overruled.

       {¶ 63} Terrell’s second assignment of error is as follows:

              THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S

       MOTION TO SUPPRESS WHEN THE WARRANT WAS SO LACKING IN

       PARTICULARITY AS TO BE FACIALLY DEFICIENT, AND THE

       EXECUTING         OFFICERS        FLAGRANTLY        DISREGARDED          THE

       LIMITATIONS THE WARRANT DID CONTAIN.

       {¶ 64} Terrell asserts that the warrant lacks particularity, and that our standard of
                                                                                          -48-


review is de novo. Terrell notes that “specifically the warrant states that the police should

seize, items showing an ownership or possessory interest in the residence and any items

located therein.” He further argues that the “warrant states that the contents of cell

phones subject to seizure include ‘contact lists, text messages, call history, photographs,

videos, application data, location data, and other documents and data.’ ” According to

Terrell, “the warrant gave the officers carte blanche to seize whatever they might think

incriminating or useful to them.” Terrell directs our attention to the trial testimony of

Detective Scott Curnutte, whose “statement that he was searching for anything that might

be interesting explicitly shows that the officers executing the search warrant were in no

way limited by the express terms in the warrant, and that he arrived at Room 623 with the

intent to participate in the type of ‘general rummaging’ and exploratory search expressly

prohibited by the Fourth Amendment.”

       {¶ 65} Finally, again citing the trial transcript, Terrell asserts that the “officers

executing the search warrant seized a candle warmer, a coffee cup, a bottle of Patron

tequila, the box the bottle of Patron came in, several glasses, empty Kroger shopping

bags, and wrist watch * * *. None of these items have any possible relation to drug

trafficking.”

       {¶ 66} Regarding the particularity of the warrant, as noted in Castagnola:

                Courts addressing the particularity requirement of the Fourth

       Amendment are concerned with two issues. The first issue is whether the

       warrant provides sufficient information to “guide and control” the judgment

       of the executing officers in what to seize. United States v. Upham, 168

       F.3d 532, 535 (1st Cir.1999). The second issue is whether the category as
                                                                                          -49-

       specified is too broad in that it includes items that should not be seized. See

       United States v. Kow, 58 F.3d 423, 427 (9th Cir. 1995).

Id., at 79. “Catchall provisions of warrants also ‘ “must be read in conjunction with the

list of particularly described items which preceded it pertaining to the crimes alleged.” * *

* ’ ”. State v. Hale, 2d Dist. Montgomery No. 23582, 2010-Ohio-2389, ¶ 43 (citation

omitted) .

       {¶ 67} We note that Terrell did not raise the particularity of the warrant or the scope

of the search before the trial court. The only issue before the trial court at the hearing

on November 9, 2015, and the only issue the court addressed, was whether there was

sufficient probable cause to support the issuance of the warrant. We conclude that Terrell

waived all but plain error as to the issues that he now asserts by failing to raise them in

the trial court. State v. Zwick, 2d Dist. Miami No. 2013 CA 4, 2014-Ohio-230, ¶ 18. (“In

his motion to suppress, Zwick challenged the issuance of the search warrants, not

whether the seizure of items pursuant to the warrants exceeded the scope of the warrants.

Because Zwick failed to raise the scope of the warrants in the trial court, he has waived

all but plain error on that issue.”)

       {¶ 68} The portions of the warrant referring to the contents of cell phones and

“any” items located in Terrell’s hotel room must be read in conjunction with the list of

particularly described items before them in the warrant. When the listed items, namely

“[h]eroin, cocaine, marijuana, controlled substance analogs, drug paraphernalia, items

used to transport, package, or prepare drugs for sale, money, financial records of drug

trafficking activity,* * *” are properly read in conjunction with the broader, “catchall”

provisions regarding the hotel room and the phones, plain error is not demonstrated.
                                                                                          -50-


       {¶ 69} Regarding the non-contraband items listed above seized in the course of

the search, there was no evidence before the trial court regarding any items seized. As

noted above, in addressing the trial court’s decision on the motion to suppress, we will

not consider the testimony adduced at trial. Plain error is not demonstrated, and for the

foregoing reasons, Terrell’s second assignment of error is overruled.

       {¶ 70} Terrell’s third assignment of error is as follows:

              THE TRIAL COURT ERRED WHEN IT OVERRULED THE MOTION

       TO SUPPRESS, BECAUSE THE OFFICER PAT SEARCHED [sic]

       APPELLANT       ABSENT      A   REASONABLE         SUSPICION       THAT     HE

       POSSESSED A WEAPON,                AND ANY CONSENT WAS GIVEN

       INVOLUNTARILY.

       {¶ 71} Terrell argues that “McCarty stated at trial that the search he conducted

was not for weapons, Appellant had given him no reason to believe he had a weapon,

and that he was specifically looking for evidence of drugs.” Terrell asserts that there is

“some discrepancy in the record as to whether or not Officer McCarty searched Appellant

before or after Officer Osborne indicated that he smelled marijuana from the vehicle; but

in either case, Appellant’s rights were violated.”

       {¶ 72} Terrell directs our attention to this Court’s decision in State v. Alexander, 2d

Dist. Montgomery No. 18205, 2000 WL 1062064 (Aug. 4, 2000). Therein, one officer

approached a vehicle in a hotel parking lot at 11:30 p.m. Id., *1. The officer smelled a

strong odor of marijuana coming from the vehicle. Id. When the driver of the vehicle

could not produce identification and exhibited “assertive movements,” the officer decided

to pat him down for officer safety. Id., *2. This Court noted that smoking marijuana is not
                                                                                          -51-


“an especially serious offense,” and that there was “nothing in the record to suggest that

Alexander was a drug dealer.” Id., *3. The Court concluded that “the strong odor of

marijuana, indicative of Alexander’s use of marijuana, even if he was not buying or selling

marijuana, justified Smith in conducting a limited pat-down search for weapons when he

decided it was necessary to place Alexander in the back of his police cruiser to separate

him from the other occupant of the car, while Alexander’s identification was being

verified.” Id., *4. Terrell asserts that “[u]nlike in Alexander, Officer McCarty expressly

states that the search was not for weapons, and was done to locate drugs. There was

no concern expressed regarding officer safety, and the ‘close call’ found in Alexander

becomes an obvious violation in those circumstances.”

       {¶ 73} Alternatively, Terrell argues that if he “was not in custody and entitled to the

protections of Miranda at the time of the search, then Appellant was unlawfully detained,

and his consent was not freely or voluntarily given.” According to Terrell, if “the search

was made prior to Officer Osborne detecting the smell of marijuana, th[e]n Officer

McCarty had absolutely no reason to search Appellant; and detaining a hotel guest for

sitting in their vehicle outside the hotel would be asinine.” Terrell argues that if he was

searched after Osborne indicated that he intended to search the vehicle based upon the

smell of marijuana, “then Appellant was already aware that a search of his vehicle was

going to be performed without his consent, and without the officers even asking for his

consent, so he would have no reason to think that refusing to allow Officer McCarty to

search his person would actually have any effect whatsoever on whether the search was

performed.”

       {¶ 74} Terrell asserts that the “State will likely argue that Appellant consented to
                                                                                       -52-


the search because he said, ‘I don’t care’, in response to the search request. Appellant’s

statement was not an affirmative waiver of his constitutional rights, it was resignation

based on his understanding that a search would be conducted no matter what he said.”

Terrell asserts as follows:

              * * * Appellant was apprehensive of elevating the confrontation with

       Officer McCarty, and believed refusing consent would only create a far more

       contentious atmosphere, and that Officer McCarty would search him

       anyway. After being read his rights, Appellant refused to consent to a

       search of his hotel room; but when Officer McCarty asked to search him,

       Appellant had not been read his rights, and didn’t believe he had the ability

       to refuse, because no one had told him he could. Appellant did not willingly

       and voluntarily consent to a search, he resigned himself to the inevitable,

       and said that he did not care.

       {¶ 75} The State responds that “when looking at the totality of the circumstances

surrounding the consent it is clear that there was consent for the officers to search

Appellant’s person.” According to the State, “Officer McCarty testified at the suppression

hearing that he asked Appellant if he minded if Officer McCarty searched him and that

Appellant responded that he didn’t care.” The State further asserts that “Officer McCarty

also testified that he asked Appellant specifically if he could check inside his p[o]ckets

and appellant again responded that he didn’t care.” The State argues that Terrell’s

“consent to search his person was heard by the hotel security officer who testified at the

suppression hearing that Appellant consented to the search.” According to the State,

there “was no evidence presented at the suppression hearing to counter the consent
                                                                                          -53-


given,” and officers “are not required to inform a subject that they can refuse to search for

consent to be effective.” The State notes that Terrell “had no problem” refusing consent

to search his hotel room.

       {¶ 76} In reply, Terrell argues as follows:

              Appellant’s arguments that he believed he could not refuse consent,

       and that he did not refuse out of fear, are not separate arguments, but two

       parts of a whole.      At the time Officer McCarty requested to search

       Appellant, Officer Osborne had already indicated that Appellant’s vehicle

       would be searched without his consent. Appellant had not been read his

       Miranda rights, knew that his vehicle was being searched without his

       consent, and; according to Officer McCarty, Appellant was being detained.

       * * * Under these circumstances, Appellant believed that if he did attempt to

       refuse consent, he would be searched anyway; and feared that any attempt

       to refuse would only result in creating a more confrontational situation with

       the officers.

       {¶ 77} Terrell acknowledges that he refused consent to search his hotel room, but

notes that “this was after Officer Osborne informed Appellant of his Miranda rights.

Appellant’s understanding that he could effectively and safely refuse to consent to a

search of his hotel room was a direct byproduct [sic] of being informed through Miranda

that his rights would be honored.” According to Terrell, the State “may be correct that

officers are not necessarily required to inform a suspect of his rights prior to a request for

consent in all circumstances, but officers are certainly required to do so when a suspect

is in custody, and Officer McCarty openly admits that Appellant was being detained.”
                                                                                          -54-


Finally, Terrell notes that “Officer McCarty admits that Appellant’s statement that he did

not care was not an affirmative yes.”

       {¶ 78} As this Court has previously noted:

              “Appellate review of a motion to suppress presents a mixed question

       of law and fact. When considering a motion to suppress, the trial court

       assumes the role of trier of fact and is therefore in the best position to

       resolve factual questions and evaluate the credibility of witnesses.” State

       v. Koon, 2d Dist. Montgomery No. 26296, 2015-Ohio-1326, ¶ 13 quoting

       State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶

       8. “Consequently, an appellate court must accept the trial court's findings of

       fact if they are supported by competent, credible evidence. Accepting these

       facts as true, the appellate court must then independently determine,

       without deference to the conclusion of the trial court, whether the facts

       satisfy the applicable legal standard.” Id. The application of the law to the

       trial court's findings of fact is subject to a de novo standard of review. State

       v. Gordon, 5th Dist. Fairfield No. 14–CA–13, 2014-Ohio-5027, ¶ 14, citing

       Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911

       (1996).

State v. Turner, 2015-Ohio-4612, 48 N.E.3d 981, ¶ 10 (2d Dist.).

       {¶ 79} “In general, ‘[l]aw enforcement may briefly stop and detain an individual for

investigation if the officers have a reasonable, articulable suspicion that criminal activity

may be afoot.’ State v. Studley, 2d Dist. Greene No. 2010 CA 81, 2011-Ohio-5563, ¶

54, citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).” State v.
                                                                                          -55-

White, 2013-Ohio-3027, 995 N.E.2d 930, ¶ 15 (2d Dist.).

      {¶ 80} As this Court has previously noted:

             Consent is an exception to the warrant requirement that requires the

      State to “show by ‘clear and positive’ evidence that the consent was ‘freely

      and voluntarily’ given.” (Citations omitted.) State v. Posey, 40 Ohio St.3d

      420, 427, 534 N.E.2d 61 (1988). Specifically, “ ‘ “the State has the burden

      of proving that the necessary consent was obtained and that it was freely

      and voluntarily given, a burden that is not satisfied by showing a mere

      submission to a claim of lawful authority.” ’ ” (Emphasis omitted.) State v.

      Hawkins, 2d Dist. Montgomery No. 25712, 2013-Ohio-5458, ¶ 14, quoting

      State v. Robinette, 80 Ohio St.3d 234, 243, 685 N.E.2d 762 (1997), quoting

      Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

             “A ‘clear and positive’ standard is not significantly different from the

      ‘clear and convincing’ standard of evidence, which is the amount of proof

      that will produce in the mind of the trier of fact a firm belief or conviction as

      to the allegations to be proved. It is an intermediate standard of proof, being

      more than a preponderance of the evidence and less than evidence beyond

      a reasonable doubt.” (Citations omitted). State v. Ingram, 82 Ohio App.3d

      341, 346, 612 N.E.2d 454 (2d Dist.1992). “[T]he question whether a consent

      to a search was in fact ‘voluntary’ or was the product of duress or coercion,

      express or implied, is a question of fact to be determined from the totality of

      all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93

      S.Ct. 2041, 36 L.Ed.2d 854 (1973).
                                                                                        -56-

State v. Ojezua, 2016-Ohio-2659, 50 N.E.3d 14, ¶ 17-18 (2d Dist.).

      {¶ 81} As this Court noted in State v. Sears, 2d Dist. Montgomery No. 20849,

2005-Ohio-3880, ¶ 37:

                * * * Knowledge of the right to refuse consent is not a prerequisite

      to establishing voluntary consent, but is a relevant factor to be taken into

      account. Consent to a search that is obtained by threats or force, or granted

      only in submission to a claim of lawful authority, is invalid. Id. Such “lawful

      authority” is an express or implied false claim by police that they can

      immediately proceed to make the search in any event. Bumper v. North

      Carolina [391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).]

      {¶ 82} Six factors courts consider in determining the voluntariness of consent

include:

               1) whether the defendant’s custodial status was voluntary;

               2) whether coercive police procedures were used;

               3) the extent and level of the defendant’s cooperation;

               4) the defendant’s awareness of his or her right to refuse consent;

               5) the defendant’s education and intelligence;

               6) the defendant’s belief that no incriminating evidence would be

      found.

State v. George, 2d Dist. Montgomery No. 25945, 2014-Ohio-4853, ¶ 28.

      {¶ 83} As this Court previously noted:

               Courts and commentators have recognized that “consent [to search]

      may be implied by the circumstances surrounding the search, by the
                                                                                       -57-


      person’s prior actions or agreements, or by the person’s failure to object to

      the search.” Kuras, et al., Warrantless Searches and Seizures (2002), 90

      Geo.L.J. 1130, 1172. “Thus a search may be lawful even if the person

      giving consent does not recite the talismanic phrase ‘You have my

      permission to search.’ * * *.”

State v. Lane, 2d Dist. Montgomery No. 21501, 2006-Ohio-6830, ¶ 40.

      {¶ 84} We initially note that Terrell mischaracterizes McCarty’s testimony in

asserting that the search he conducted of Terrell’s person was not for weapons.

McCarty testified that he was dispatched to the Marriott on the report of “suspicious”

occupants in a vehicle engaged in suspected drug activity, namely coming and going from

the hotel parking lot after making repeated trips to a room inside the hotel. McCarty

testified that he and Osborne approached the vehicle described in the dispatch, and that

thereafter Osborne, from the passenger side, informed McCarty that he intended to

search the vehicle based upon a very strong odor of marijuana. McCarty testified that

he requested Terrell’s permission to search for “any weapons, or drugs or anything of that

nature.” (Emphasis added.) We note that “Ohio courts have long recognized that persons

who engage in illegal drug activities are often armed with a weapon. * * * State v. Evans,

67 Ohio St.3d 405, 413, 1993-Ohio-186.” State v. Martin, 2d Dist. Montgomery No.

20270, 2004-Ohio-2738, ¶ 17.

      {¶ 85} We further note that the facts in Alexander are distinguishable from the

matter herein; in Alexander, “the only drug violation for which Smith had a reasonable

and articulable suspicion at the time of the pat-down search was the smoking of

marijuana,” and only one officer had approached Alexander’s vehicle. Id., *4. Here, two
                                                                                        -58-


officers responded to a report of drug activity, namely suspected drug trafficking, and the

facts herein are accordingly more compelling than in Alexander to justify a pat down

search.

       {¶ 86} Further, we conclude that the record demonstrates that Terrell consented

to the search and did not merely submit to a claim of authority. On direct examination,

McCarty stated that Terrell indicated that he did not mind if McCarty searched him, and

McMahan testified that Terrell consented to a search of his person. While McCarty’s

report indicated that Terrell responded that he “did not care,” when asked for his consent

to search, nothing in the record demonstrates that Terrell refused to give consent;

McCarty testified, Terrell “didn’t give an affirmative no.” As noted above, consent may be

implied by a person’s failure to object to the search.

       {¶ 87} Further, as the State notes, in State v. Iacona, 9th Dist. Medina No. CA

2891-M, 2000 WL 277911 (March 15, 2000), the defendant therein argued that the trial

court erred in denying her motion to suppress, since law enforcement “illegally detained

the Iacona family and * * * their consent to a search of the home was not voluntary.” Id.,

*8. The officer in Iacona “arrived at the home of Defendant after he received a dispatch

that there was a dead baby in the basement of the home. Upon arrival, the patrolman

was greeted by Defendant’s mother, who invited him into the home.” Id., *9. The officer

advised defendant’s mother of the nature of the dispatch, and verbal consent to search

the premises was provided by her in response to the officer’s request, namely, “You mind

if I take a look down the basement?” Id., *9. Mrs. Iacona responded, “No. I don’t care.”

Id.   The Ninth District determined that the search of the residence “was conducted

pursuant to a valid consent.” Id., *10.
                                                                                         -59-


       {¶ 88} Finally, we note that there is no evidence in the record before us of coercive

police conduct, or that Terrell was under duress, and there is no suggestion in the officers’

testimony that Terrell’s judgment was impaired. That Terrell indicated to Osborne that

he did not want to answer questions about the female whom he was allegedly at the hotel

to visit, and that he indicated to Mitchell, when asked for permission to search the room,

that he wanted to speak to his attorney, suggest that Terrell was aware of his right to

refuse consent. Finally, whether Terrell’s consent was voluntarily given is a question of

fact, and the trial court clearly credited McCarty’s testimony, and we defer to the trial

court’s assessment of credibility. Under the totality of the circumstances, we find that

Terrell’s third assignment of error lacks merit, and it is accordingly overruled.

       {¶ 89} Terrell’s fourth assignment of error is as follows:

              THE UNWARRANTED “PROTECTIVE SWEEP” OF APPELLANT’S

       HOTEL ROOM WAS A VIOLATION OF APPELLANT’S FOURTH

       AMENDMENT RIGHTS, AND WAS NOT SUPPORTED BY ANY EXIGENT

       CIRCUMSTANCES.

       {¶ 90} Terrell asserts as follows:

              * * * The State will attempt to argue that Officer McCarty claims to

       have heard the TV on in the room, and this created a reasonable fear that

       there might be another person in the room to destroy evidence. Officer

       McCarty is the only officer present during that search who claims to have

       heard the television on; however, even if true, it had absolutely no bearing

       on the officer’s decision to enter the room. Further, upon entering the

       room, it was immediately apparent to the officers that the TV was on, yet
                                                                                          -60-


       they proceeded with their “protective sweep” anyway.

              This was not a scenario where the officers walked upstairs, knocked

       on the door, and heard frantic movement, or the frequent flushing of a toilet,

       leading them to believe that evidence actually was being destroyed, and

       necessitating that the officers kick the door down to preserve the evidence

       of the offense. Instead, the officers obtained a key from the front desk

       before they went upstairs. They had no reason to suspect evidence was

       being destroyed, nor a reason to believe that anyone was in the room, they

       had simply decided before they even got in the elevator that they were going

       to check in the room and make sure. Whether Officer McCarty heard the

       television when he arrived had no impact on the officers’ decision.

       {¶ 91} Terrell argues that “officers admitted at trial that they had no knowledge or

reasonable belief that there was anyone else in the hotel room. Further, the officers

certainly did not have a reasonable belief that the destruction of evidence was imminent,

because at the time they made the warrantless entry the officers had no specific reason

to believe that there even was evidence to destroy.”

       {¶ 92} According to Terrell, trial testimony “indicates that the officers never had

the lights of their vehicle on when they pulled into the hotel. Appellant was in sight of the

police at all times, and there is certainly no indication that he made a phone call during

the encounter with the police.” He argues that if a third party was present in Room 623,

“it is extremely unlikely that they would be aware of what was going on in the parking lot,

or know to start destroying evidence. Further, the officers indicated at trial that it was at

least forty-five minutes between their initial interaction with Appellant, and the search of
                                                                                         -61-


Room 623.” Terrell asserts that if “a third party was in the room, and unaware of the

police, then the police created any exigency which may have existed by walking up to the

room and announcing themselves, rather than simply waiting outside until a warrant could

be obtained.”

      {¶ 93} The State responds that the “initial entry into the hotel room was based on

exigent circumstances and only made for the purpose of securing the room to ensure that

no evidence was destroyed.” The State asserts that “the officers had a reasonable belief

that someone else might be inside the hotel room because Appellant told Officer Osborn

that there was a female in the hotel room that he was there to visit.” According to the

State, it “is also reasonable that that person in the room could destroy evidence because

someone in a hotel room, expecting Appellant to return to the room as he had been doing

all evening, could have easily looked out the window and seen Appellant interacting with

officers and destroyed evidence.” The State notes that Officer McCarty heard someone

speaking, knocked on the door without response, and that such a circumstance “could

lead to a reasonable belief that someone was in the room and destroying evidence.”

      {¶ 94} The State argues that even if this Court finds that “the initial entry into the

room was unlawful, it did not affect the search conducted pursuant to the search warrant.”

According to the State, “all of the evidence obtained in this case is wholly dependent and

in no way the product of the initial warrantless entry into the residence.” The State notes

that both “officer Osborne and Officer McCarty testified at the suppression hearing that

they were in the hotel room for less than a minute and they only ensured that there was

no one in the room that could destroy evidence.”

      {¶ 95} In reply, Terrell argues, regarding the State’s assertion that the officers
                                                                                           -62-


believed someone else might be inside the hotel room, that “Detective Mitchell’s affidavit

shows that this is not true. The affidavit states that Appellant told Officer Osborn that he

was at the hotel to meet a woman, but that she had not shown up yet.” According to

Terrell, the “State cannot base a claim of exigent circumstances on this statement of

Appellant, because Appellant said that the woman was not there.”

         {¶ 96} Further, Terrell asserts that “it is clear that the officers did not believe

Appellant about either the presence of a woman, or his room number.                  Appellant

indicated that his room was 615, but officers searched Room 623 after speaking with hotel

staff. The officers were further informed that only one person was staying in the hotel

room.”

         {¶ 97} Finally, Terrell asserts as follows:

                The State’s argument that an exigent circumstance was created

         because Officer McCarty heard voices inside the room when officers were

         outside of it is similarly flawed. The voices were actually the television, and

         no one was in the room. The officers arrived at the room with every intent

         of entering it, regardless of any sounds they may have heard from inside.

         The officers obtained a key to the room from the front desk before ever

         going near the room, and the only reason to obtain the key is to open the

         door. The State cannot claim that an exigency was created by any voices

         Officer McCarty thought he heard when the officers went to the room with

         every intention of entering it.

         {¶ 98} As this Court has previously noted:

                “It is well recognized that police may enter a home without a warrant
                                                                                 -63-


where they have probable cause to search and exigent circumstances exist

justifying the entry.” State v. Carr, Montgomery App. No. 19121, 2002-Ohio-

4201, ¶ 15, citing Minnesota v. Olson (1990), 495 U.S. 91, 100, 110 S.Ct.

1684, 109 L.Ed.2d 85. * * *

       ***

       When officers secure a residence pending a search warrant, they

may enter that residence. State v. Carroll (Nov. 30, 1994), Lorain App. Nos.

93CA005775 & 94CA005814 [1994 WL 665268], citing State v. Swartz

(Sept. 12, 1990), Summit App. No. 14514 [1990 WL 131733], in turn citing

Segura [v. U.S.], supra, [468 U.S. 796,] at 798. However, this intrusion must

be limited in time and scope. Illinois v. McArthur (2001), 531 U.S. 326, 331,

121 S.Ct. 946, 148 L.Ed.2d 838. Therefore, any entry based upon exigent

circumstances is “ ‘strictly circumscribed by the exigencies which justif[ied]

its initiation.’ ” State v. Brewster, 157 Ohio App.3d 342, 2004-Ohio-2722, ¶

32, quoting State v. Applegate, 68 Ohio St.3d 348, 350, 1994-Ohio-356, in

turn quoting Terry v. Ohio (1968), 392 U.S. 1, 26, 88 S.Ct. 1868, 20 L.Ed.2d

889. Thus, when a residence must be secured in order to preserve

evidence, “the scope of the intrusion is limited to that necessary to secure

the evidence.” State v. Martin, Hamilton App. No. C-040150, 2004-Ohio-

6433, ¶ 40, citing United States v. Aquino (C.A.10, 1970), 836 F.2d 1268,

1272; Brewster, supra, at ¶ 32. This may include securing “the people inside

and any evidence in plain view.” Id. See, also, State v. Frankenhoff, Licking

App. No.2006CA00095, 2007-Ohio-2806, ¶ 6; State v. Mitchell, Cuyahoga
                                                                                          -64-

      App. No. 88131, 2007-Ohio-3896, ¶ 32; State v. Sturdivant, Cuyahoga App.

      No. 87498, 2006-Ohio-5451, ¶ 2.

State v. Burns, 2d Dist. Montgomery No. 22674, 2010-Ohio-2831, ¶ 20, 22.

             {¶ 99} As this Court noted in State v. Striks, 2015-Ohio-1401, 31 N.E.3d

      208, ¶ 32-33 (2d Dist.):

             * * * “Whether exigent circumstances are present is determined

      through an objective test that looks at the totality of the circumstances

      confronting the police officers at the time of the entry.” State v. Enyart, 10th

      Dist. Franklin Nos. 08AP–184, 08AP–318, 2010-Ohio-5623, ¶ 21, citing

      United States v. MacDonald, 916 F.2d 766, 769 (2d Cir.1990). The United

      States Supreme Court has recognized only a few emergency conditions that

      qualify as exigent circumstances, one of which is “imminent destruction of

      evidence.” [State v.] Cheadle, 2d Dist. Miami No. 00CA03, 2000 WL 966167

      at *2. “[A] warrantless entry to prevent the destruction of evidence is justified

      if the government demonstrates: ‘1) a reasonable belief that third parties

      are inside the dwelling; and 2) a reasonable belief that these third parties

      may soon become aware the police are on their trail, so that the destruction

      of evidence would be in order.’ ” United States v. Lewis, 231 F.3d 238, 241

      (6th Cir.2000), quoting United States v. Sangineto–Miranda, 859 F.2d 1501,

      1512 (6th Cir.1988). Accord State v. Goode, 2d Dist. Montgomery No.

      25175, 2013-Ohio-958, ¶ 18.

             In addition, “[s]ecuring a dwelling, on the basis of probable cause, to

      prevent the destruction or removal of evidence while a search warrant is
                                                                                        -65-


       being sought is not itself an unreasonable seizure of either the dwelling or

       its contents.” Segura v. United States, 468 U.S. 796, 810, 104 S.Ct. 3380,

       82 L.Ed.2d 599 (1984). Accord Burns, 2d Dist. Montgomery No. 22674,

       2010-Ohio-2831, at ¶ 22 (“When officers secure a residence pending a

       search warrant, they may enter that residence”).

       {¶ 100} As this Court noted in State v. Nelson, 2d Dist. Montgomery No. CA9363,

1986 WL 9504, *6 (Aug. 22, 1986):

              * * * Segura holds that when the information on which a search

       warrant was secured came from an independent source and not from the

       original entry, evidence obtained lawfully under the warrant was admissible.

       Under such circumstances the illegality of the original entry is irrelevant on

       the admission of evidence and the “fruit of the poisonous tree” doctrine not

       applicable.

       {¶ 101} As noted above, the officers were dispatched to the scene on a report of

suspected drug activity that involved Terrell repeatedly appearing in the parking lot and

returning to his room in the hotel, activity that had occurred on a previous occasion. As

further noted above, Terrell was deceptive about the circumstances of his presence at

the hotel. He was further misleading about the presence of the alleged female guest.

Terrell initially advised Osborne that he was there to visit the female. Mitchell testified

that he learned from McCarty (via Osborne) that Terrell indicated that he was not a guest

at the hotel but was visiting the female in Room 615. McCarty, however, testified that

Terrell advised him that he was a guest at the hotel, in Room 615, and that McMahan

could vouch for his status as a registered guest.
                                                                                        -66-


       {¶ 102} Osborne testified that he was instructed to secure Room 623, the room to

which the officers eventually confirmed Terrell was registered. Osborne stated that he

“checked it for people. That’s it.”   He stated that he “didn’t open anything or touch

anything.” Osborne stated that he did so because he “didn’t know” if anyone was inside

the room. Osborne, an experienced officer, stated that he believed that “there was some

type of drug activity going on in” the hotel room based upon the strong odor of marijuana

coming from the van, his familiarity with Terrell’s and Minter’s criminal history involving

drug activity, and the report of suspected drug activity at the hotel by McMahan. Osborne

stated that he was inside the room for “less than ten seconds” to “make sure there was

nobody inside of the room to destroy anything that could be inside.”

       {¶ 103} Consistent with Osborne’s testimony, McCarty testified that his intent in

entering the room was “to secure it,” and to make “sure there was nobody in there that

could destroy any possible evidence before we could search it.” (Emphasis added.)

McCarty testified that he had reason to believe someone was inside the room because

Terrell indicated “at some point, he was with some female in the room.” Like Osborne,

McCarty testified that the sweep of the room was limited in time and scope. He stated

that he was in the room “[m]aybe a minute or less,” and that as he walked through the

room he checked between the beds and in the shower for people. Unlike Osborne,

McCarty further testified that he heard “very faint voices” emanating from the room,

thereby bolstering his concern that the room was occupied. We note that while Terrell

asserts that the officers learned from the front desk that the room was registered to him

alone, such that he was the sole occupant of the room, hotel personnel may not know if

a registered guest has visitors.
                                                                                          -67-


       {¶ 104} Most significantly, in the course of entering and securing the room pending

the search warrant, the officers did not retrieve any evidence.       In other words, the

information that served as the basis for the search warrant, as noted above, came from

sources independent of the original protective sweep. For the foregoing reasons, we

conclude that Terrell’s fourth assigned error lacks merit. It is accordingly overruled.

       {¶ 105} On January 18, 2017, Terrell filed a motion for leave to file a supplemental

brief, as well as a supplemental brief, and this Court granted the motion on January 24,

2017. Terrell directed this Court’s attention to State v. Gonzales, Ohio Supreme Court

Slip Opinion No. 2016-Ohio-8319 (“Gonzales I”), asserting two assignments of error as

follows:

              APPELLANT’S CONVICTION TO [sic] A FELONY OF THE FIRST

       DEGREE UNDER R.C. §2925.11(C)(4)(e); AND A FELONY OF THE FIRST

       DEGREE UNDER §2925.03(C)(4)(f); WERE NOT SUPPORTED BY

       SUFFICIENT EVIDENCE AND WERE AGAINST THE MANIFEST

       WEIGHT OF THE EVIDENCE PURSUANT TO THE OHIO SUPREME

       COURT’S DECISION IN STATE V. GONZALES.

              And,

              THE TRIAL COURT’S JURY INSTRUCTION AND APPELLANT’S

       SENTENCE       TO    A   MANDATORY         TERM     OF    INCARCERATION

       CONSTITUTE PLAIN ERROR.

       {¶ 106} We initially note that Megan Snyder testified at trial that she is a forensic

scientist in the drug chemistry section of the Ohio Bureau of Criminal Investigations. She

testified via video deposition at trial that she tested two samples of substances retrieved
                                                                                      -68-


from Terrell’s hotel room and confirmed that they were cocaine. She stated that one of

the samples weighed 42.53 grams, and one of them weighed 42.34 grams, for a total

weight of 84.87 grams.

      {¶ 107} As this Court previously noted:

             When a defendant challenges the sufficiency of the evidence, he is

      arguing that the State presented inadequate evidence on each element of

      the offense to sustain the verdict as a matter of law. State v. Hawn, 138

      Ohio App.3d 449, 471 N.E.2d 594 (2d Dist. 2000). “An appellate court's

      function when reviewing the sufficiency of the evidence to support a criminal

      conviction is to examine the evidence admitted at trial to determine whether

      such evidence, if believed, would convince the average mind of the

      defendant's guilt beyond a reasonable doubt. The relevant inquiry is

      whether, after viewing the evidence in a light most favorable to the

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

      elements of the crime proven beyond a reasonable doubt.” State v. Jenks,

      61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

             Our analysis is different when reviewing a manifest-weight

      argument. When a conviction is challenged on appeal as being against the

      weight of the evidence, an appellate court “reviewing the entire record,

      weighs the evidence and all reasonable inferences, considers the credibility

      of witnesses and determines whether in resolving conflicts in the evidence,

      the jury clearly lost its way and created such a manifest miscarriage of

      justice that the conviction must be reversed and a new trial ordered. The
                                                                                         -69-


      discretionary power to grant a new trial should be exercised only in the

      exceptional case in which the evidence weighs heavily against the

      conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

      Dist.1983).

State v. Anderson, 2d Dist. Montgomery No. 26917, 2016-Ohio-5157, ¶ 12-13.

      {¶ 108} R.C. 2925.11 provides in relevant part:

             (A) No person shall knowingly obtain, possess, or use a controlled

      substance or a controlled substance analog.

             ***

             (C) Whoever violates division (A) of this section is guilty of one of the

      following:

             ***

             (4) If the drug involved in the violation is cocaine or a compound,

      mixture, preparation, or substance containing cocaine, whoever violates

      division (A) of this section is guilty of possession of cocaine. The penalty

      for the offense shall be determined as follows:

             ***

             (e) If the amount of the drug involved equals or exceeds twenty-

      seven grams but is less than one hundred grams of cocaine, possession of

      cocaine is a felony of the first degree, and the court shall impose as a

      mandatory prison term one of the prison terms prescribed for a felony of the

      first degree.

      {¶ 109} R.C. 2925.03 provides in relevant part:
                                                                                      -70-


       (A) No person shall knowingly do any of the following:

       ***

       (2) Prepare for shipment, ship, transport, deliver, prepare for

distribution, or distribute a controlled substance or a controlled substance

analog, when the offender knows or has reasonable cause to believe that

the controlled substance or a controlled substance analog is intended for

sale or resale by the offender or another person.

       ***

       (C) Whoever violates division (A) of this section is guilty of one of the

following:

       ***

       (4) If the drug involved in the violation is cocaine or a compound,

mixture, preparation, or substance containing cocaine, whoever violates

division (A) of his section is guilty of trafficking in cocaine. The penalty for

the offense shall be determined as follows:

       ***

       (f) If the amount of the drug involved equals or exceeds twenty-

seven grams but is less than one hundred grams of cocaine and regardless

of whether the offense was committed in the vicinity of a school or in the

vicinity of a juvenile, trafficking in cocaine is a felony of the first degree, and

the court shall impose as a mandatory prison term one of the prison terms

prescribed for a felony of the first degree.

{¶ 110} As this Court has previously noted:
                                                                                        -71-


              In order to constitute plain error, the error must be an obvious defect

      in the proceedings, and the error must have affected substantial rights.

      State v. Barnes, 94 Ohio St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240. Under

      the plain error doctrine, errors affecting substantial rights may be noticed on

      appeal although they were not brought to the attention of the trial court.

      Crim.R. 52(B).

State v. Henley, 2d Dist. Montgomery No. 26604, 2015-Ohio-4113, ¶ 10.

      {¶ 111} Rafael Gonzales was convicted of possession of cocaine, and the jury

found that “the amount of cocaine involved equaled or exceeded 100 grams.” Gonzales

I, ¶ 5. Gonzales received a mandatory sentence of 11 years. Id. In Gonzales I, the

Supreme Court of Ohio recognized a conflict between State v. Gonzales, 6th District

Wood No. WD-13-086, 2015-Ohio-461, ¶ 47 (“Because the state failed to introduce

evidence as to the purity or weight of the cocaine in this case, we find that appellant’s

penalty enhancement under R.C. 2925.11(C)(4)(f) must be reversed and vacated.”), and

this Court’s decision in State v. Smith, 2d Dist. Greene No. 2010-CA-36, 2011-Ohio-2568,

¶ 12 (“Case law does not support Smith’s claim that the State was required to segregate

the cocaine from the other ingredients in the substance.”). The Court considered the

following certified question: “Must the state, in prosecuting cocaine offenses involving

mixed substances under R.C. 2925.11(C)(4)[(b)] through (f), prove that the weight of the

cocaine meets the statutory threshold, excluding the weight of any filler materials used in

the mixture?” Gonzales I, ¶ 1.

      {¶ 112} The Supreme Court noted that it found “nothing in the language of R.C.

2925.11(C)(4)(f) to be ambiguous.        By its plain terms, the statute prohibits the
                                                                                           -72-

possession of 100 grams or more of cocaine.” Id., ¶ 20. The Court concluded that “in

prosecuting cocaine-possession offenses under R.C. 2925.11(C)(4)(b) through (f)

involving mixed substances, the state must prove that the weight of the actual cocaine,

excluding the weight of any filler materials, meets the statutory threshold.” Id., ¶ 22.

       {¶ 113} Terrell asserts that Gonzales I applies retroactively, and that it applies both

to cases involving possession of cocaine, and cases involving trafficking in cocaine. He

asserts that Gonzales I “requires the State to prove that the amount of pure cocaine

involved in an alleged first degree felony offense for trafficking in or possession of cocaine

is at twenty-seven grams,” and that the “State presented no evidence regarding the purity

of the cocaine, or the amount of pure cocaine.” Finally, he asserts that the trial court’s

“failure to instruct the jury that the State must prove the amount of pure cocaine, excluding

fillers, involved in Appellant’s alleged offenses constitutes plain error.” The State

responds that Gonzales I does not apply retroactively.

       {¶ 114} On March 7, 2017, the State filed a “Notice of Additional Authority,”

directing this Court’s attention to State v. Gonzales, Ohio Supreme Court Slip Opinion

No. 2017-Ohio-777 (“Gonzales II”), in which the Supreme Court reconsidered its decision

in Gonzalez I on the State’s motion. The Court noted that “[r]ead as a whole, the plain

language of R.C. 2925.11(C)(4)(b) through (f) penalizes an offender for the amount of

cocaine possessed, and the amount of ‘cocaine’ clearly encompasses the whole

compound or preparation of cocaine, including fillers that are part of the usable drug.”

Id., ¶ 9. The Court further noted that pursuant to R.C. 2925.01(X)(3), the “statutory

definition of ‘cocaine’ includes a ‘salt, compound, derivative, or preparation’ of a

substance that is cocaine salt or base cocaine,” and that “the statutory definition of
                                                                                             -73-

cocaine plainly encompasses a compound or preparation that includes cocaine.” Id., ¶

10. The Court defined “compound” as “ ‘something (as a substance * * *) that is formed

by a union of * * * ingredients.’ Webster’s Third New International Dictionary 466 (1986).”

Id. The Court concluded that “this is consistent with the nature of the cocaine used illegally

in the United States, which is a compound of several ingredients.” Id., ¶ 11.

       {¶ 115} It was significant to the Court that “the fillers, or adulterants, that are part

of powder cocaine are not intended to be removed before consumption. Indeed, the

fillers are an inherent part of powder cocaine.” Id., ¶ 12. The Court noted that “the

common usage of the term ‘cocaine’ is consistent with the statutory definition that a

compound or preparation of cocaine is still cocaine,” and the Court concluded that “the

total weight of the drug, including any fillers that are part of usable cocaine, should be

weighed to determine the appropriate cocaine-possession penalty under the statute.” Id.

According to the Court, the “statute is unambiguous,” and “[i]f the General Assembly had

been concerned about purity, rather than total weight, it would have said so.” Id., ¶ 13-14.

The Court concluded that “the applicable offense level for cocaine possession under R.C.

2925.11(C)(4) is determined by the total weight of the drug involved, including any fillers

that are part of the usable drug.” Id., ¶ 18.

       {¶ 116} Based upon the Supreme Court’s decision in Gonzales II, we conclude

that Terrell’s supplemental assignments of error lack merit. In other words, Terrell’s

convictions are supported by sufficient evidence and not against the manifest weight of

the evidence, the trial court did not commit plain error in failing to instruct the jury that the

State was required to prove that the amount of pure cocaine, excluding fillers, at issue in

Terrell’s offenses was at least 27 grams, and Terrell’s sentence does not constitute plain
                                                                                         -74-


error, since his 11-year sentence for a first degree felony is within the statutory range of

R.C. 2929.14(A)(1).     Terrell’s supplemental assignments of error are accordingly

overruled, and the judgment of the trial court is affirmed.




                                      .............

FROELICH, J. and WELBAUM, J., concur.

Copies mailed to:

Megan M. Farley
Roger Soroka
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Hon. Douglas M. Rastatter
