[Cite as State v. Morales, 2018-Ohio-3687.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                No. 17AP-807
v.                                                :          (C.P.C. No. 16CR-4991)

Luis A. Morales, Jr.,                            :        (REGULAR CALENDAR)

                 Defendant-Appellant.            :



                                         D E C I S I O N

                                   Rendered on September 13, 2018


                 On brief: Ron O'Brien, Prosecuting            Attorney,     and
                 Barbara A. Farnbacher, for appellee.

                 On brief: Yeura R. Venters, Public Defender, and Robert D.
                 Essex, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
        {¶ 1} Defendant-appellant, Luis A. Morales, Jr., appeals from the judgment entry
of the Franklin County Court of Common Pleas finding appellant guilty of possession of
marijuana following appellant's no contest plea. For the following reasons, we affirm the
decision of the trial court.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On April 27, 2016, Detective Lowell Smittle of the Columbus Division of
Police applied for a search warrant requesting a search be authorized at 643 Belvidere
Avenue "and the curtilage" thereof in Columbus, Ohio. (Aff. in Support of Warrant to
No. 17AP-807                                                                               2


Search at 2; Search Warrant at 1.) The affidavit in support of the warrant to search provided
by Smittle states:
              In January 2016, Detective Smittle received information
              pertaining to a Tera Igel Hughes and Jordan Cook who were
              selling illegal drugs such as crack cocaine and heroin out of the
              residence located at 643 Belvidere Ave.

              From January 28th and April 1st 2016, Detective Smittle
              conducted stationary and mobile surveillance at 643 Belvidere
              Ave. and observed several vehicles registered to Tera Igel
              Hughes, parked out front of the location. Detective Smittle
              observed Jordan Cook driving vehicles registered to Sarah Igel
              Hughes in the area on multiple occasions. Detective Smittle
              also observed Tera Igel Hughes and Jordan Cook in the back
              yard of the residence coming and going from 643 Belvidere
              Ave. on several occasions.

              During the week of March 13th 2016, utilizing a confidential
              informant, Detectives made a controlled purchase of crack
              cocaine from 643 Belvidere Ave., Columbus, Ohio 43223.
              Undercover officers personally met with informant prior to the
              buy. The source knows what crack cocaine looks like, how it is
              packaged and has used it in the past. The C/I was searched and
              found not to have any contraband or money on his/her person;
              was given a specific amount of city funds with which to
              purchase the narcotics; proceeded to 643 Belvidere Ave. The
              C/I returned directly to the undercover officers, detective's
              maintained constant surveillance of the C/I. The C/I gave them
              an amount of illegal contraband which he/she had purchased
              from the premises. The informant was searched and no
              contraband or money was found on his/her person. After the
              narcotics were recovered they were field tested "Positive'' and
              transported to the Columbus Police Property Room and held as
              evidence.

              During the week of March 27th 2016, utilizing a confidential
              informant, Detectives made a controlled purchase of crack
              cocaine from 643 Belvidere Ave., Columbus, Ohio 43223.
              Undercover officers personally met with informant prior to the
              buy. The source knows what tar heroin looks like, how it is
              packaged and has used it in the past. The C/I was searched and
              found not to have any contraband or money on his/her person;
              was given a specific amount of city funds with which to
              purchase the narcotics; proceeded to 643 Belvidere Ave. The
              C/I returned directly to the undercover officers, detective's
No. 17AP-807                                                                            3


              maintained constant surveillance of the C/I. The C/I gave them
              an amount of illegal contraband which he/she had purchased
              from the premises. The informant was searched and no
              contraband or money was found on his/her person. After the
              narcotics were recovered they were field tested "Positive" and
              transported to the Columbus Police Property Room and held as
              evidence.

              Per the statutory requirements of section 2933.231 of the Ohio
              Revised Code, Detective Lowell T. Smittle #1776 of the
              Columbus Division of Police has verified that 643 Belvidere
              Ave. Columbus, Ohio 43223, is the correct address in relation
              to the criminal offense underlying the request for the issuance
              of the search warrant.

              Detective Smittle has good cause to believe and does believe
              that. Trafficking in Drugs, 2925.03 O.R.C, Possession of Drugs,
              2925.11 of the O.R.C., Drug Paraphernalia Offenses, 2925.14 of
              the O.R.C, are currently being violated at, 643 Belvidere Ave.,
              Columbus, Ohio 43205, in Franklin County and requests
              permission to search said premise, occupants known or
              unknown and curtilage.

              Based on the above-described facts, the Affiant requests that
              the statutory preconditions for non-consensual entry be waived
              (no knock) for the following location: 643 Belvidere Ave.
              Columbus, Ohio 43223, and the curtilage thereof.

(Sic passim.) (Aff. in Support of Warrant to Search at 1-2.) The search warrant, which was
signed by a municipal court judge that same day at 11:35 a.m., states that Smittle, having
been duly sworn, says that he has good cause to believe and does believe that:
              Evidence of the crimes of: Trafficking in Drugs, 2925.03
              O.R.C., Possession of Drugs, 2925.11 O.R.C., Drug
              Paraphernalia Offenses, 2925.14 O.R.C., Illegally obtained
              prescription medication, or any other controlled substance or
              drug of abuse, as defined in § 3719.41 R.C.; other evidence of
              illicit drug trafficking, to search for and collect all cash,
              weapons, documents and any other fruits and
              instrumentalities and evidence of the crimes unknown at this
              time; and authority to search any persons at such premises or
              curtilage.

(Search Warrant at 1.)
No. 17AP-807                                                                                 4


       {¶ 3} The warrant was executed two days later on April 29, 2016 at 11:55 a.m. by
the Columbus Division of Police. According to the sworn inventory of property taken on
the warrant, property taken from the garage of the residence attributable to appellant and
another suspect included: 29 marijuana plants; 29 planting pots; a grow tent; multiple
types of grow lights; filters; drying racks; an "electronic ballast device"; ceramic heater; an
"xtreme nano"; a "fan blower"; an open bag of plugs; a "BlueLab PH pen"; 12 bottles of grow
chemicals; and 2 plastic tubs. (Evidence Inventory at 1-2.) This property was seized and
submitted for testing.
       {¶ 4} On September 9, 2016, a grand jury indicted appellant on one count of
possession of marijuana, in violation of R.C. 2925.11, a fifth-degree felony, for knowingly
obtaining, possessing, or using marijuana in an amount equal or exceeding 200 grams but
less than 1,000 grams on or about April 29, 2016. Appellant entered a plea of not guilty at
arraignment.
       {¶ 5} On April 14, 2017, appellant moved to suppress and exclude from trial the
evidence found during the search. Appellant argued the information on which the affidavit
was obtained was stale and insufficient, and, therefore, the seizure violated the Fourth and
Fourteenth Amendments of the U.S. Constitution and Section 14 of the Ohio Constitution .
Appellant additionally argued that plaintiff-appellee, State of Ohio, could not take
advantage of the good-faith exception. In its memorandum contra appellant's motion to
dismiss, appellee argued that the information in the warrant affidavit provided a
substantial basis for the trial court judge's conclusion that there was a fair probability that
contraband or evidence of a crime would be found in appellant's home. Alternatively,
appellee argued the good-faith exception to the exclusionary rule applied.
       {¶ 6} A hearing on the motion to suppress was held on July 19, 2017. The parties
stipulated to admission of a certified copy of the search warrant, supporting affidavit, and
subsequent documentation of property seized. No witnesses were called, and the trial court
heard arguments from the parties. Appellant asserted the affidavit supporting the warrant
was "stale" in that, based on the information provided in the affidavit, there was not a fair
probability that drugs would still be on the premises. (July 19, 2017 Tr. at 26.) Appellant
additionally challenged the reliability and basis of knowledge of the confidential informant
and the lack of more specific dates cited in the affidavit. Appellant agreed that under the
No. 17AP-807                                                                                  5


standard of review, "[i]f it's legitimately a close call, then you probably need to give
deference to the municipal court [judge]." (July 19, 2017 Tr. at 43.) Appellee argued the
affidavit described drug trafficking from the residence at issue, the nature of drug
trafficking is that of an ongoing operation, and that case law relevant to warrant issued
based on suspected drug trafficking support the time frame of issuance of the warrant in
this case. Appellee also argued that the good-faith exception to the exclusionary rule would
apply in this case.
       {¶ 7} On August 17, 2017, the trial court denied the motion to suppress. According
to the trial court, the only real issue in the case is the staleness issue, and case law on this
topic is "all over the place." (August 17, 2017 Tr. at 54.) To the trial court, although the
affidavit was "disturbingly vague," he would deny the motion because "in looking at the
totality of the circumstances and the fact that the case law instructs that in a close call, the
warrant and the affidavit is to be upheld." (August 17, 2017 Tr. at 54.)
       {¶ 8} A plea and sentencing hearing was held on October 23, 2017. After being
advised of his rights, pursuant to Crim.R. 11, appellant, represented by counsel, entered a
no contest plea of guilty to possession of marijuana. According to the facts recited at the
plea and sentencing hearing, which appellant did not take any exception to for purposes of
the plea, appellant "was one of the people who was inside the house at the time" of the raid,
was interviewed regarding the raid after being read his constitutional rights, and "did admit
to owning, possessing and maintaining the large marijuana grow operation that was
recovered inside the unattached garage at 463 Belvidere Avenue" but claimed he did not
sell the drugs but only used the drugs. (Oct. 23, 2017 Tr. at 4.) Furthermore, the plants
recovered were found to be 477.2 grams of marijuana.
       {¶ 9} The trial court imposed a period of community control for three years,
reserving a prison term of twelve months if appellant violates the terms of community
control. No fines or court costs were imposed.
       {¶ 10} Appellant filed a timely appeal to this court.
II. ASSIGNMENT OF ERROR
       {¶ 11} Appellant assigns the following as trial court error:
              The trial court erred in denying Defendant-Appellant's motion
              to suppress all evidence obtained from the search of 643
              Belvidere conducted on April 29, 2016 as the information
No. 17AP-807                                                                               6


              contained in the search warrant was stale and did not provide
              sufficient and timely information to establish probable cause.

III. STANDARD OF REVIEW
       {¶ 12} The Supreme Court of Ohio articulated the general standard of review for a
motion to suppress in State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372:
              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. 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.

(Internal citations omitted.) Id. at ¶ 8-9. State v. Edwards, 10th Dist. No. 12AP-992, 2013-
Ohio-4342, ¶ 21. Where the trial court did not make any findings of fact, we apply a de novo
standard in determining whether the trial court properly denied appellant's motion to
suppress. State v. Johnson, 10th Dist. No. 13AP-637, 2014-Ohio-671, ¶ 6.
       {¶ 13} In cases where the defendant's motion to dismiss challenges the sufficiency
of probable cause in an affidavit submitted in support of a search warrant, neither the trial
court (in its initial determination of whether to grant or deny a defendant's motion to
dismiss) or an appellate court (in reviewing the trial court's decision on the defendant's
motion) should substitute its own judgment regarding probable cause for that of the judge
or magistrate who issued the search warrant. State v. Ingold, 10th Dist. No. 07AP-648,
2008-Ohio-2303, ¶ 20, quoting State v. George, 45 Ohio St.3d 325 (1989), paragraph two
of the syllabus (holding that reviewing courts should not conduct de novo review as to
whether the affidavit contains sufficient probable cause to support a warrant). Rather, "[i]n
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 [issuing judge's]
determination of probable cause, and doubtful or marginal cases in this area should be
resolved in favor of upholding the warrant." Ingold at ¶ 20; George at paragraph two of the
No. 17AP-807                                                                                  7


syllabus. A court reviewing whether an affidavit submitted in support of a search warrant
sufficiently established probable cause must simply ensure that the issuing judge had a
"substantial basis" for concluding that probable cause existed. Ingold at ¶ 20; George at
paragraph two of the syllabus.
IV. LEGAL ANALYSIS
         A. Appellant's Assignment of Error
         {¶ 14} Under his assignment of error, appellant argues that the information
presented to the judge was stale in that it was not sufficiently timely to allow the judge to
make a determination that there was probable cause to believe drugs would still be on the
premises. For the following reasons, we disagree.
         {¶ 15} The Fourth Amendment to the U.S. Constitution, as applied to the states
through the Fourteenth Amendment, provides that "[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and the persons
or things to be seized." This right is reflected in the Ohio Constitution, revised code, and
criminal rules. See Article I, Section 14 of the Ohio Constitution; R.C. 2933.22(A); Crim.R.
41(C).
         {¶ 16} "A neutral and detached judge or magistrate may issue a search warrant only
upon a finding of probable cause." State v. Young, 146 Ohio App.3d 245, 253 (11th
Dist.2001), citing United States v. Leon, 468 U.S. 897, 916 (1984). The test for determining
probable cause to issue a search warrant is whether, viewing all the circumstances set forth
in the supporting affidavit, there is a fair probability that contraband or evidence of a crime
will be found in a particular place. Ingold at ¶ 17-18, citing George at paragraph one of the
syllabus.    This is a "practical, common-sense decision" that is not a prima facie
demonstration of criminal activity. George at paragraph one of the syllabus, quoting
Illinois v. Gates, 462 U.S. 213, 238-39 (1983); Ingold at ¶ 19.
         {¶ 17} Pursuant to the Fourth Amendment exclusionary rule, all evidence obtained
by searches and seizures in violation of the U.S. Constitution is inadmissible in a state court.
Ingold at ¶ 18; Mapp v. Ohio, 367 U.S. 643, 655 (1961). However, the good-faith exception
to the exclusionary rule provides that the "exclusionary rule should not be applied so as to
No. 17AP-807                                                                                  8


bar the use in the prosecution's case-in-chief of evidence obtained by officers acting in
objectively reasonable reliance on a search warrant issued by a detached and neutral
magistrate but ultimately found to be unsupported by probable cause."               George at
paragraph three of the syllabus.
       {¶ 18} In this appeal, appellant submits that the nearly one-month lag between the
last investigative action indicated in the detective's affidavit and issuance of the warrant is
"far too long" to create a fair probability that drugs or the targets of the investigation would
be present at the residence on the date and time of the search given the perishable and
easily transferable nature of the contraband sought and the absence of any intervening
police work such as surveillance or controlled buys to provide recent corroboration.
(Appellant's Brief at 14.) Appellant cites State v. Jendrusik, 7th Dist. No. 06-BE-06, 2006-
Ohio-7062, ¶ 25, and several federal cases—United States v. Brooks, 594 F.3d 488, 493
(6th Cir.2010), quoting United States v. Frechette, 583 F.3d 374, 378 (6th Cir.2009), and
United States v. Kennedy, 427 F.3d 1136 (8th Cir.2005)—for the proposition that the
perishability and easy transferability of drugs rendered the information in the instant
affidavit stale.   Appellant additionally argues that the good-faith exception to the
exclusionary rule does not apply since, considering the lapse between the last work the
detective performed on the case and the issuance of the warrant, the affidavit was so lacking
in indicia of probable cause that a belief that drugs would still be on the premises was
objectively unreasonable.
       {¶ 19} Probable cause must exist at the time the application for a warrant is made.
Ingold at ¶ 22; State v. Shropshire, 8th Dist. No. 103808, 2016-Ohio-7224, ¶ 25. "The more
'stale' the evidence becomes, the less likely it is to support probable cause." (Internal
quotation omitted.) State v. Ridgeway, 4th Dist. No. 00CA19 (Nov. 21, 2001). "There is
no arbitrary time limit that dictates when information [offered to support a search warrant
application] becomes stale." Ingold at ¶ 20. Instead, "[t]he test for staleness is whether the
alleged facts justify the conclusion that contraband is probably on the person or premises
to be searched at the time the warrant issues." Id. See also State v. Rieves, 8th Dist. No.
105386, 2018-Ohio-955, ¶ 31 (internal quotation omitted) (stating information becomes
stale when enough time has elapsed such that there is no longer sufficient basis to believe
that the items to be seized are still on the premises).
No. 17AP-807                                                                                 9


       {¶ 20} "The question of staleness is not measured solely by counting the days
between the events listed in the affidavit and the application for warrant." Ingold at ¶ 23.
"Ohio courts have identified a number of factors to consider in determining whether the
information contained in an affidavit is stale, including the character of the crime, the
criminal, the thing to be seized, as in whether it is perishable, the place to be searched, and
whether the affidavit relates to a single isolated incident or ongoing criminal activity." Id.;
Brooks at 493 (noting that whether information is stale depends on the inherent nature of
the crime).
       {¶ 21} An affidavit supporting a search warrant which, viewed in its totality,
indicates investigation into an ongoing criminal operation, such as drug trafficking, may
support the issuance of a search warrant even where the information provided in the
affidavit is not recent. United State v. Ortiz, 143 F.3d 728, 733 (2d Cir.1998), quoting
United States v. Martino, 664 F.2d 860, 867 (2d Cir.1981) ("[W]hen the supporting facts
'present a picture of continuing conduct or an ongoing activity, . . . the passage of time
between the last described act and the presentation of the application becomes less
significant."); Ridgeway, quoting State v. McKenzie, 6th Dist. No. E-97-040 (Sept. 18,
1998) (" '[A]n affidavit which establishes a pattern of conduct or indicates an ongoing
investigation can justify the granting of a search warrant based on old information.' ").
       {¶ 22} For example, information in an affidavit over one month old has been found
to support probable cause to issue a search warrant where the affidavit describes ongoing
criminal activity. See, e.g., State v. Clouser, 4th Dist. No. 16CA4, 2016-Ohio-5370, ¶ 16-17
(two and one-half months between last incidents of drug transactions and warrant
application not stale and supported probable cause); State v. Prater, 12th Dist. No.
CA2001-12-114, 2002-Ohio-4487, ¶ 10-14 (six months between last incidents of drug
transactions and warrant application not stale and supported probable cause).
       {¶ 23} In this case, the affidavit in support of the search warrant states that in
January 2016, Smittle first received information pertaining to Hughes and Cook selling
illegal drugs, such as crack cocaine and heroin, out of the Belvidere residence. From
January 28 to April 1, 2016, Smittle conducted stationary and mobile surveillance of the
residence and was able to identify Hughes and Cook at that residence. A confidential
No. 17AP-807                                                                                 10


informant made two controlled buys from the residence during the weeks of March 13 and
March 27, 2016.
       {¶ 24} Appellant has not demonstrated that the approximate one-month span
between the drug activity stated in the affidavit and the application for the search warrant
(April 27, 2016) demands reversal on the facts of this case. App.R. 16(A)(7); State v. Sims,
10th Dist. No. 14AP-1025, 2016-Ohio-4763, ¶ 11 (stating general rule that an appellant
bears the burden of affirmatively demonstrating error on appeal). The cases cited by
appellant acknowledge the distinction, in gauging staleness as it relates to probable cause,
between warrants issued based on affidavits describing single incidents of crimes and
affidavits describing ongoing criminal activity and investigations. See, e.g., Jendrusik
(finding trial court erred in denying motion to suppress where information in supporting
affidavit consisted of one "isolated incident" of a controlled drug buy, the affidavit was filed
43 days after the controlled drug buy occurred, and there was no information pointing to
an ongoing drug business operation or ongoing investigation); Frechette (internal citations
omitted) (noting that information regarding "mobile, easily concealed, readily consumable"
narcotics "could quickly go stale in the absence of information indicating an ongoing and
continuing narcotics operation"); Kennedy at 1142 (distinguishing a tip that a man stopped
by police was a drug dealer and had drugs hidden in his car from federal cases that found
information in the affidavit occurring three months, one month, and two and one-half
weeks prior to the warrant application to not be stale where the affidavit information
indicated an ongoing narcotics operation). Viewed in total, Smittle's affidavit describes an
approximately three-month long investigation into ongoing criminal drug activity at the
Belvidere address.
       {¶ 25} Considering all the above, we find the totality of Smittle's affidavit provided
a substantial basis for the issuing judge's conclusion that there was a fair probability that
illegal drugs or other evidence of drug trafficking would be found in the residence. George
at 330. Therefore, the trial court did not err in denying appellant's motion to suppress
evidence obtained from the search, and we need not address whether the good-faith
exception to the exclusionary rule applies. Edwards at ¶ 31.
       {¶ 26} Accordingly, we overrule appellant's assignment of error.
No. 17AP-807                                                                   11


V. CONCLUSION
      {¶ 27} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                              Judgment affirmed.
                      BROWN, P.J., and BRUNNER, J., concur.
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