[Cite as State v. Henderson, 2019-Ohio-1974.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                        C.A. No.   28880

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
NATHAN L. HENDERSON                                  COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR-2017-02-0675-B

                                 DECISION AND JOURNAL ENTRY

Dated: May 22, 2019



        TEODOSIO, Presiding Judge.

        {¶1}    Appellant, Nathan L. Henderson, appeals from his conviction for illegal

cultivation of marijuana in the Summit County Court of Common Pleas. This Court reverses and

remands.

                                                I.

        {¶2}    According to Detective Daniel Quior of both the Cuyahoga Falls Police

Department and the Summit County Drug Unit, he received information that Mr. Henderson

drove a red minivan and was cultivating marijuana at 1262 Welsh Avenue. The detective

commenced an investigation, conducted surveillance of the residence, and twice saw Mr.

Henderson there: once as he arrived in a red minivan and entered the house without knocking,

and once in the back driveway area of the residence. He investigated Mr. Henderson’s criminal

history and discovered two arrests for trafficking drugs—one for marijuana and one for
                                                 2


cocaine—as well as convictions for drug possession. He also observed that no trash was ever

placed out front for pickup, which he testified is an indicator of a marijuana grow operation.

       {¶3}     According to the detective, based on his training and experience, indoor

marijuana grow operations require a high level of electricity, so he subpoenaed the electricity-

usage records from 1262 Welsh Avenue as well as three comparable houses in the area. He

reviewed the month-to-month data over a one-year period. He was looking for a “spike” in

kilowatts per hour (“KPH”) because marijuana grows occur in periods, including “down periods”

for harvesting. The detective saw that electricity usage at 1262 Welsh Avenue spiked to an

“extremely high” number in May of 2016. To him, it did not indicate air conditioners or space

heaters, but a much higher power consumption instead. Detective Quior then secured a search

warrant for thermal imaging of the residence. He accompanied two pilots and Detective Jerry

Antonucci of the Ohio State Highway Patrol Aviation Unit in a helicopter for a thermal flyover

of 1262 Welsh Avenue and the surrounding neighborhood. Detective Quior then secured a

search warrant for the residence located at 1262 Welsh Avenue. A search of the residence

revealed a marijuana grow operation in the basement.

       {¶4}     Mr. Henderson and his co-defendant (“S.H.-H.”) were both charged with illegal

cultivation of marijuana, a felony of the second degree, and possession of marijuana, a felony of

the third degree. S.H.-H. was also charged with aggravated possession of drugs, a felony of the

fifth degree.

       {¶5}     Mr. Henderson and S.H.-H. filed a joint motion to suppress, which the trial court

denied following a hearing. Mr. Henderson then pled no contest to an amended charge of illegal

cultivation of marijuana, a felony of the third degree, and the remaining charge was dismissed.

The trial court found him guilty and sentenced him to 24 months of community control.
                                                 3


       {¶6}    Mr. Henderson now appeals from his conviction and raises one assignment of

error for this Court’s review.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN HOLDING, BASED ON THE TOTALITY OF
       THE CIRCUMSTANCES, THERE WAS PROBABLE CAUSE FOR
       ISSUANCE OF THE SEARCH WARRANT FOR APPELLANT’S RESIDENCE

       {¶7}    Mr. Henderson makes a multitude of arguments under his assignment of error.

He argues that the trial court erred in denying his motion to suppress because: (1) Detective

Quior impermissibly drew an inference in his search-warrant affidavit for thermal imaging—by

averring that the electricity usage at 1262 Welsh Avenue was “significantly higher” than

comparable properties—thus usurping the signing judge’s authority to draw such inferences; (2)

Detective Quior misrepresented the source of his information as being anonymous when the

source was actually a known informant; (3) the thermal imaging search-warrant affidavit did not

establish probable cause, and the information provided by the informant should have been

reviewed under the standard for anonymous sources; (4) Detective Quior impermissibly drew a

false inference in his affidavit supporting a search of the house at 1262 Welsh Avenue by

inaccurately stating that the thermal imaging scan “revealed a strong heat signature emitting

from the basement area of the address that was not consistent with the surrounding houses”; and

(5) the search-warrant affidavit for the house did not establish probable cause.

       {¶8}    Mr. Henderson’s stated assignment of error initially gives us pause as it only

challenges the determination that sufficient probable cause existed for the second search

warrant—for a search of the residence at 1262 Welsh Avenue—but it does not state with

specificity any alleged errors regarding the thermal imaging search warrant or its supporting
                                                4


affidavit, the classification of the informant as anonymous or known, or any impermissible

inferences made by the detective in either affidavit. This Court has consistently held that an

appellant’s captioned assignment of error provides us with a roadmap on appeal and directs our

analysis. E.g., State v. Martynowski, 9th Dist. Lorain No. 17CA011078, 2017-Ohio-9299, ¶ 18.

Consequently, “[t]his Court will not address arguments that fall outside the scope of an

appellant’s captioned assignment of error.” Id. While we could conceivably decline to address

several of Mr. Henderson’s arguments on this basis alone—save his ultimate challenge to the

determination of sufficient probable cause for the warrant to search the house—we will instead

liberally construe his statement referencing the “totality of the circumstances” as challenging the

probable cause for the warrant to search the house as well as incorporating his additional

arguments as to the thermal imaging search warrant and affidavit, as the results of the thermal

imaging scan were referenced in the affidavit supporting the warrant to search the house.

       {¶9}    Mr. Henderson pled no contest in this case, and a plea of no contest does not

preclude a defendant from asserting on appeal that the trial court erred in ruling on a pretrial

motion to suppress evidence. Crim.R. 12(I). The appropriate standard of review is as follows:

       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.

(Citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

                            “Significantly Higher” Electricity Usage

       {¶10} Mr. Henderson argues that Detective Quior, by concluding in his thermal imaging

search-warrant affidavit that the electricity usage at 1262 Welsh Avenue was “significantly
                                                 5


higher” than at comparable properties, usurped the issuing judge’s authority to draw such

inferences.

       {¶11} “[A]ffiants may make reasonable inferences within search-warrant affidavits.”

State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, ¶ 39.              However, to permit an

independent review, the facts upon which those inferences are based must be disclosed and the

issuing judge must be afforded the opportunity to test any significant inferences drawn by the

affiant. Id. at ¶ 40. The issuing judge cannot be viewed as neutral and detached if she issues a

search warrant that is unknowingly based on the police officer’s conclusions. Id. at ¶ 41. While

search-warrant affidavits will inevitably include undisclosed inferences, there is a line between

permissible police interpretation and usurpation of the judge’s function. Id. at ¶ 49.

       {¶12} In Castagnola, the Supreme Court of Ohio adopted the test outlined in People v.

Caffott for reviewing courts confronted with allegations that an inference made by an affiant was

presented as an empirical fact in an affidavit, thus usurping the issuing judge’s inference-drawing

authority. Id. See also People v. Caffott, 105 Cal.App.3d 775 (Cal.App.1980). Where an

undisclosed inference is made in an affidavit, the reviewing court should:

       [D]etermine whether the hidden inference was so significant as to cross the line
       between permissible interpretation and usurpation. * * * A hidden inference
       should be deemed significant if it can be fairly concluded that it had a substantial
       bearing on the [issuing judge’s] determination of probable cause in each of two
       respects:

       (1) Relevance: The more directly relevant the inference is to the [issuing judge’s]
       inquiry, the more substantial its bearing and the more significant it will be. * * *

       (2) Complexity: The more complex and attenuated the logical process by which a
       relevant conclusion is reached, the more important it is that the [issuing judge]
       receive an opportunity to test the inference for validity as part of [her] neutral and
       detached function. Conversely, an inference so straightforward, and so patently
       within the affiant’s area of expertise, as to be a matter of “routine interpretation”
       for the affiant is probably not so significant as to require the [issuing judge’s]
       review even though the conclusion thus reached is highly relevant.
                                                6



Id., quoting Caffott at 783. If the inference is significant, then the reviewing court should

examine the affiant’s animus. Id. at ¶ 50. “If the affiant acted intentionally or with conscious

indifference, then the warrant should be invalidated and the evidence suppressed.”             Id.

“However, if the affiant acted negligently, then the misstatement should be removed, the omitted

underlying facts added, and the affidavit reassessed.” Id.

       {¶13} In the case sub judice, the thermal imaging search-warrant affidavit includes the

following statement:

       AFFIANT knows from obtaining First Energy power consumption records by
       subpoena on January 19[], 2017[,] that the electrical power consumption at 1262
       Welsh Avenue, Akron[,] Ohio is significantly higher than that of similar[-]sized
       residences by comparing the consumption.

(Emphasis added.). No additional information or data regarding the properties or their electricity

usage is included within the affidavit.

       {¶14} When first considering the relevance of the detective’s conclusion that the

electricity usage at 1262 Welsh Avenue was “significantly higher” than at comparable

properties, we note that courts have generally determined electricity usage to be relevant in

determining probable cause. See State v. Stock, 8th Dist. Cuyahoga No. 105996, 2018-Ohio-

3496, ¶ 31; State v. Adkins, 12th Dist. Butler Nos. CA2014-02-036 and CA2014-06-141, 2015-

Ohio-1698, ¶ 67; State v. Kosla, 10th Dist. Franklin Nos. 13AP-514, 13AP-517, 13AP-515, and

13AP-516, 2014-Ohio-1381, ¶ 37; State v. Leibold, 2d Dist. Montgomery No. 25124, 2013-

Ohio-1371, ¶ 24. We agree with our sister district courts and conclude that Detective Quior’s

inference was relevant to the determination of probable cause.

       {¶15} We must next consider the complexity of the logical process by which Detective

Quior’s conclusion was reached. The detective reviewed and compared the month-to-month
                                                7


electricity-usage data from 1262 Welsh Avenue and three comparable houses in the area over a

one-year period. He testified at the suppression hearing that he was looking for a “spike” in

KPH because marijuana grows occur in periods, including “down periods” for harvesting. The

affidavit includes Detective Quior’s knowledge, training, and experience in recognizing the

various indicators of indoor marijuana grow operations, including higher electricity usage

resulting from the use of grow lights, power supply transformers, and ventilation equipment.

Under the facts of this particular case, and in consideration of Detective Quior’s knowledge,

training, and experience with drug-related investigations, as well as the simplistic nature of

comparing numbers to determine if any are much higher than others, we conclude that his

“significantly higher” conclusion was so straightforward, and so patently within his area of

expertise, as to be a matter of “routine interpretation” for him. See Castagnola at ¶ 49. The

detective’s review and comparison of the data was not so complex and attenuated as to require

some type of additional, comprehensive investigation.

       {¶16} Thus, even though Detective Quior’s “significantly higher” conclusion is certainly

relevant to the determination of probable cause, it is not so significant as to require the issuing

judge’s review of the actual, underlying electricity-usage data. See id. We therefore need not

examine the detective’s animus and, accordingly, conclude that the inference was reasonable

under the circumstances and did not cross line between permissible police interpretation and

usurpation of the issuing judge’s function.

                   Veracity of the Thermal Imaging Search-Warrant Affidavit

       {¶17} Mr. Henderson also challenges the veracity of the thermal imaging search-warrant

affidavit by arguing that Detective Quior misrepresented the source of information as being

anonymous when the source was actually a known informant.
                                                 8


       {¶18} While Mr. Henderson’s argument initially challenges the thermal imaging search-

warrant affidavit, it oddly concludes with a sentence challenging the “issuance of the subpoena

to Ohio Edison for electric usage data and comparison.” However, the electricity-usage data was

subpoenaed prior to the detective’s preparation of the thermal imaging search-warrant affidavit

and is referenced within that document. Moreover, “individuals do not have a reasonable

expectation of privacy in their electricity usage records, and * * * the police do not need

probable cause in order to obtain the records.” Leibold, 2013-Ohio-1371, at ¶ 38, citing State v.

Coleman, 2d Dist. Montgomery No. 25248, 2012-Ohio-6042, ¶ 24, citing United States v.

McIntyre, 646 F.3d 1107 (8th Cir.2011). See also United States v. Thomas, 662 Fed.Appx. 391,

397 (6th Cir.2016) (“As with banking and phone records, there is no Fourth Amendment privacy

interest in the number of kilowatt hours one uses”).         We thus presume Mr. Henderson’s

challenge to the subpoena for electricity-usage data at the conclusion of his argument was a

typographical error, and we will address his argument only as it applies to the thermal imaging

search-warrant affidavit.

       {¶19} We respectfully disagree with the dissent’s suggestion that Mr. Henderson’s

argument regarding the anonymity of the tip only challenged the sufficiency of the subpoena of

electricity-usage data, and that this Court is now sua sponte raising the argument as it relates to

the thermal imaging search-warrant affidavit. Although Mr. Henderson challenged the subpoena

of electricity-usage data in his motion to suppress, at the suppression hearing he further

challenged the anonymity of the tip as it related to the search-warrant affidavits. He has since

narrowed down his arguments on appeal and focused on the search warrants and their supporting

affidavits. In his merit brief, he first challenges the “affidavit in support of a warrant to conduct

a thermal imaging scan” and specifically states, “Det. Quior clearly misrepresented the nature of
                                                9


the information source in his warrant affidavit * * *.” (Emphasis added.). Thus, his later

reference to the subpoena for electricity-usage data in that same section appears to have been

made by mistake, presumably because a few paragraphs of his motion to suppress have been

copied word for word and now appear in his appellate brief. When his argument on appeal is

read as a whole, however, the fact that he is challenging the anonymity of the tip as it relates to

the search-warrant affidavits, and not the electricity-usage subpoena, becomes clear.

       {¶20} Affidavits supporting search warrants enjoy a presumption of validity. Franks v.

Delaware, 438 U.S. 154, 171 (1978). In order to successfully challenge the veracity of a search-

warrant affidavit, “a defendant must show by a preponderance of the evidence that the affiant

made a false statement, either ‘intentionally, or with reckless disregard for the truth.’” State v.

Perry, 9th Dist. Lorain No. 15CA010889, 2017-Ohio-1185, ¶ 12, quoting State v. McKnight, 107

Ohio St.3d 101, 2005-Ohio-6046, ¶ 31, quoting State v. Waddy, 63 Ohio St.3d 424, 441 (1992),

quoting Franks at 155-156. “The term ‘reckless disregard’ means that ‘the affiant had serious

doubts about the truth of an allegation.’” Id., quoting McKnight at ¶ 31, quoting United States v.

Williams, 737 F.2d 594, 602 (7th Cir.1984).

       {¶21} Here, the thermal imaging search-warrant affidavit plainly refers to an

“anonymous complaint” regarding alleged marijuana cultivation at 1262 Welsh Avenue. During

his testimony at the suppression hearing, Detective Quior clarified the reason he listed the source

as anonymous. He testified that the source of information was a known informant he had

previously used in Cuyahoga Falls who “wish[ed] to remain anonymous.”

       {¶22} Although labeling a known informant as anonymous in an affidavit supporting a

search warrant is an ill-advised practice, Mr. Henderson still bears the burden of showing not

only that the statement is false, but also that it was made intentionally or with a reckless
                                               10


disregard for the truth. See Perry at ¶ 12. A review of the record reveals no evidence that

Detective Quior misidentified the nature of the source intentionally or with a reckless disregard

for the truth. Instead, his testimony demonstrated that he actually believed “anonymous” was a

true and accurate classification of the informant. There is no indication that the detective was

being intentionally deceptive or reckless when listing the informant as anonymous. Under these

facts, we cannot say that the detective intentionally made a false statement that undermined the

veracity of the search-warrant affidavit.

       {¶23} Regardless, we fail to see how Mr. Henderson suffered any prejudice here, since,

under Ohio law, anonymous informants are less reliable than known informants. See Maumee v.

Weisner, 87 Ohio St.3d 295, 300-301 (1999) (discussing informant reliability). In other words,

identifying the source as a known informant would have strengthened the detective’s search-

warrant affidavit, and any error in listing the source as anonymous would have benefited Mr.

Henderson, not the State. As we will address in detail below, Mr. Henderson acknowledges that

benefit as he argues the trial court erred by reviewing the information under the standard for

known informants, rather than the standard for anonymous informants. Therefore, we find no

merit in Mr. Henderson’s challenge to the veracity of the search-warrant affidavit for thermal

imaging.

       Validity of the Thermal Imaging Search-Warrant and Supporting Affidavit

       {¶24} Mr. Henderson also challenges the validity of the thermal imaging search-warrant

by arguing that the trial court erred in reviewing the information received from Detective Quior’s

source under the standard for known informants, rather than under the appropriate standard for

anonymous sources.
                                               11


       {¶25} “Courts have generally recognized three categories of informants: (1) the

identified citizen informant, (2) the known informant, i.e., someone from the criminal world who

has a history of providing reliable tips, and (3) the anonymous informant.” State v. Jordan, 104

Ohio St.3d 21, 2004-Ohio-6085, ¶ 36, citing Maumee at 300. “A tip from an anonymous

informant, standing alone, is generally insufficient to support reasonable suspicion of criminal

activity, because it lacks the necessary indicia of reliability.” Id. Anonymous tips require

suitable corroboration demonstrating sufficient indicia of reliability to provide reasonable

suspicion because, unlike a tip from a known informant whose reputation can be assessed and

who can be held responsible if his allegations turn out to be fabricated, an anonymous tip alone

seldom demonstrates the informant’s basis of knowledge or veracity. Id.

       {¶26} As stated above, Detective Quior listed his source as being anonymous in the

thermal imaging search-warrant affidavit, but later testified at the suppression hearing that the

source was actually a known informant. In its order denying the motion to suppress, the trial

court characterized the discrepancy between the detective’s testimony and the language utilized

in the affidavit as being “simply a semantical error” and “simply an oversight[,]” and ultimately

upheld the thermal imaging search warrant as being supported by sufficient facts to support a

finding of probable cause.

       {¶27} We recognize that search-warrant affidavits “are normally drafted by non[-

]lawyers in the midst and haste of a criminal investigation” and therefore “must be tested and

interpreted by magistrates and courts in a commonsense and realistic fashion.” United States v.

Ventresca, 380 U.S. 102, 108 (1965). Although true that the detective’s affidavit “should not be

judged as an entry in an essay contest,” it nonetheless “must be judged by the facts it contains.”

United States v. Harris, 403 U.S. 573, 579 (1971). “It is elementary that in passing on the
                                                12


validity of a warrant, the reviewing court may consider only information brought to the [issuing

judge’s] attention.” (Emphasis sic.) Aguilar v. Texas, 378 U.S. 108, 109 (1964), fn. 1.

       {¶28} Here, the source is described in the affidavit simply as an “anonymous complaint”

and no additional information is included to clarify that the source is actually a known informant

who wishes to remain anonymous. There is also no evidence of any oral testimony that was

presented to the issuing judge in conjunction with the affidavit. Moreover, at the time the search

warrant was signed, the issuing judge was certainly not privy to the detective’s future

suppression hearing testimony clarifying his reasoning and decision to list the source as

anonymous in the affidavit. The only information before the issuing judge was that the source

was anonymous, so the information must be reviewed under the standard for anonymous sources.

Once again, anonymous sources require suitable corroboration demonstrating sufficient indicia

of reliability to provide reasonable suspicion. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, at ¶

36.

       {¶29} We next turn to the probable cause determination for the search warrant for

thermal imaging. “To determine if an affidavit in support of a search is supported by probable

cause, a judge must ‘make a practical, common-sense decision whether, given all the

circumstances set forth in the affidavit before him [or her], 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. Myers, 9th Dist. Summit No.

27576, 2015-Ohio-2135, ¶ 10, quoting Illinois v. Gates, 462 U.S. 213, 238-239 (1983). “Courts

should give ‘great deference’ to the determination of probable cause made by the judge or

magistrate who issued the search warrant.” State v. Jackson, 9th Dist. Summit No. 28691, 2018-

Ohio-1285, ¶ 16, quoting Myers at ¶ 10. The applicable standard of review is as follows:
                                               13


       In reviewing the sufficiency of probable cause in an affidavit 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. 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, * * * doubtful or
       marginal cases in this area should be resolved in favor of upholding the warrant.

Myers at ¶ 10, quoting State v. George, 45 Ohio St.3d 325 (1989), paragraph two of the syllabus.

       {¶30} “‘Probable cause means the existence of evidence, less than the evidence that

would justify condemnation, such as proof beyond a reasonable doubt or by a preponderance; in

other words, probable cause is the existence of circumstances that warrant suspicion.’” State v.

Tejada, 9th Dist. Summit No. 20947, 2002-Ohio-5777, ¶ 8, quoting State v. Young, 146 Ohio

App.3d 245, 254 (11th Dist.2001). “Under that definition, while a prima facie showing of

criminal activity is not required, we must instead look for the probability of criminal activity.”

Jackson at ¶ 17, citing Myers at ¶ 11. “When conducting a review of the probable cause behind a

search warrant, we are mindful that we are ‘limited to the four corners of the search warrant

affidavit.’” Jackson at ¶ 17, quoting Myers at ¶ 11, quoting State v. Russell, 9th Dist. Summit

No. 26819, 2013-Ohio-4895, ¶ 9.

       {¶31} The thermal imaging search-warrant affidavit sets forth a number of facts,

including: (1) An “anonymous complaint” was received regarding marijuana cultivation at 1262

Welsh Avenue; (2) subpoenaed electricity-usage records show that power consumption at 1262

Welsh Avenue is significantly higher than at comparable residences; (3) indoor marijuana grow

operations—based on the affiant’s knowledge, training, and experience—produce an elevated

amount of heat commonly radiated from within the structure that is measurable and

documentable by those trained and certified in the use of thermal imaging equipment; (4) the
                                               14


Ohio State Highway Patrol Aviation Section is trained and certified in the use of thermal

imaging equipment during flyovers, and a video will be recorded and produced; and (5) there is

reason—based on the affiant’s knowledge, training, and experience—to conduct a thermal

imaging flyover of the residence to further the investigation and protect the public. The trial

court found that the search warrant for thermal imaging was supported by sufficient facts to

establish probable cause.

       {¶32} In properly limiting our review to the four corners of the affidavit, we determine

that the issuing judge did not have a substantial basis for concluding that probable cause existed

to issue a search warrant for thermal imaging in this case. The affidavit contains nothing to

connect any possible criminal activity to the residence or anyone within it, only providing an

anonymous source’s conclusion that 1262 Welsh Avenue contains an indoor marijuana grow

operation. Wholly conclusory statements do not provide an issuing judge with a substantial basis

for determining the existence of probable cause, and instead “provid[e] virtually no basis at all

for making a judgment regarding probable cause.”          Gates, 462 U.S. at 239.       Sufficient

information must be presented to the issuing judge to allow her to determine probable cause, and

her action cannot be a mere ratification of the bare conclusions of others. Id. The affidavit here

is devoid of any information regarding the informant’s veracity, reliability, or basis of

knowledge. See id. at 230 (stating an informant’s veracity, reliability, and basis of knowledge

are all highly relevant in determining probable cause). See also State v. Richardson, 9th Dist.

Summit No. 24636, 2009-Ohio-5678, ¶ 13-15.          Nothing in the affidavit identifies who is

allegedly cultivating marijuana in the house or indicates if that person has a criminal record.

Moreover, even when considering the allegation of electricity usage as significantly higher at

1262 Welsh Avenue than at some comparable properties, no reference to any additional,
                                                15


independent police corroboration of the anonymous tip is included in the affidavit. See Jordan,

104 Ohio St.3d 21, 2004-Ohio-6085, at ¶ 36 (stating anonymous sources require suitable

corroboration demonstrating sufficient indicia of reliability to provide reasonable suspicion). A

conclusory, uncorroborated statement from an anonymous source whose veracity, reliability, and

basis of knowledge are completely unknown, combined with a statement about high electricity-

usage at the house, without more, cannot provide a judge with a substantial basis for concluding

that probable cause existed to issue a search warrant. See Leibold, 2013-Ohio-1371, at ¶ 33

(“We hesitate to approve scenarios which would permit police to obtain a warrant based solely

on (legally) random inspection of electricity usage records, even for a residence which had been

the subject of a prior search.”).

        {¶33} Therefore, even while giving great deference to the issuing judge’s determination

of probable cause, and while recognizing that doubtful or marginal cases should be resolved in

favor of upholding the warrant, we can only conclude that this particular “bare bones” affidavit

supporting the search warrant for thermal imaging does not include sufficient information to

support a determination that probable cause existed.

        {¶34} Our determination that the thermal imaging search-warrant affidavit was

insufficient to establish probable cause leads us to next determine whether the evidence obtained

during execution of the thermal imaging search warrant still should not have been suppressed

under the “good faith exception” established in United States v. Leon, 468 U.S. 897 (1984).

        Pursuant to Leon’s “good faith exception,” evidence seized under the authority of
        a warrant that a court later finds was not supported by probable cause will not be
        suppressed if it can be demonstrated that the officer reasonably relied on the
        decision of a detached and neutral magistrate. Id. at 920-922. “At the heart of the
        ‘good faith[] exception[’] is the fact that the mistake that invalidated the warrant
        was solely on the part of the judge who issued the warrant. The police officers,
        on the other hand, merely executed a warrant they thought was valid. The
        rationale for not excluding evidence seized in such a situation focuses on the
                                                16


       inability of the exclusionary rule to fulfill its purpose of deterring police
       negligence and misconduct.” State v. Simon, 119 Ohio App.3d 484, 487 (1997).
       However, suppression will still be the appropriate remedy if the affidavit
       presented to the signing judge in support of the warrant is “‘so lacking in indicia
       of probable cause as to render official belief in its existence entirely
       unreasonable.’” George, 45 Ohio St.3d at 331, quoting Leon, 468 U.S. at 923.

Richardson at ¶ 17.

       {¶35} As discussed above, Detective Quior’s affidavit failed to contain sufficient facts

for the issuing judge to conclude that probable cause existed to conduct a thermal imaging scan

of 1262 Welsh Avenue. Due to the wide array of pertinent information that is simply not

included or not addressed in the affidavit, we can only conclude that the affidavit is so lacking in

indicia of probable cause as to render official belief in its existence entirely unreasonable, and

the good faith exception to the exclusionary rule is therefore inapplicable. See id.

       {¶36} Accordingly, because the trial court’s findings of fact are not supported by

competent, credible evidence, we conclude that the trial court erred in upholding the thermal

imaging search warrant and erred in not suppressing the evidence obtained from the thermal

imaging scan of 1262 Welsh Avenue and the surrounding neighborhood.

                                     “Strong Heat Signature”

       {¶37} Mr. Henderson next argues that Detective Quior, by concluding in his affidavit

supporting the warrant to search the house that the prior thermal imaging scan revealed a “strong

heat signature” emitting from the basement, usurped the issuing judge’s authority to draw such

inferences.

       {¶38} Because we have already concluded above that the trial court should have

suppressed any evidence obtained from the thermal imaging scan, we need not address any

further challenges to that evidence, as they have been rendered moot.
                                               17


            Validity of the Search Warrant for the Residence and Supporting Affidavit

       {¶39} Mr. Henderson next argues that Detective Quior’s affidavit supporting the warrant

to search 1262 Welsh Avenue did not establish sufficient probable cause.

       {¶40} Once again, the applicable standard of review is as follows:

       In reviewing the sufficiency of probable cause in an affidavit 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. 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, * * * doubtful or
       marginal cases in this area should be resolved in favor of upholding the warrant.

Myers, 2015-Ohio-2135, at ¶ 10, quoting George, 45 Ohio St.3d 325, at paragraph two of the

syllabus.

       {¶41} The affidavit supporting the warrant to search the residence at 1262 Welsh

Avenue sets forth Detective Quior’s knowledge training, and experience as well as a litany of

facts, including: (1) Detective Quior and the Summit County Drug Unit have been investigating

Mr. Henderson and others for the illegal cultivation of marijuana in Akron, Ohio, for several

months; (2) Mr. Henderson is a white male, 5’10” tall, weighing 195 pounds, and primarily

resides at 1262 Welsh Avenue; (3) on approximately January 10, 2017, anonymous information

was received that Mr. Henderson was involved in the illegal cultivation of marijuana and has

been growing several different strands of marijuana in his basement for a long period of time; (4)

the anonymous informant also stated that a red and blue minivan is always in the driveway, and

records show that Mr. Henderson has a red Ford van registered to him; (5) Detective Quior

conducted surveillance and positively identified Mr. Henderson in the front yard of the address;

(6) electricity-usage data for 1262 Welsh Avenue and three comparable houses—a summary of
                                                18


which is included in the affidavit—was subpoenaed on January 19, 2017, and the data shows

1262 Welsh Avenue consuming a “considerably higher” amount of electricity than the next

highest house; (7) the electric bill for the house is in the name of another man (“G.B.”) who rents

the house; (8) Detective Quior knows through his training and experience that individuals who

cultivate marijuana consume much higher amounts of energy due to the use of certain necessary

components, including special lighting, irrigation systems, and ballast systems; (9) on January

23, 2017, police secured a search warrant for thermal imaging, which was executed and

“revealed a strong heat signature emitting from the basement area of the address that was not

consistent with surrounding houses”; (10) Detective Quior knows through his training and

experience that extreme lighting is needed for the cultivation of marijuana, causing a much

higher heat signature in the house. The trial court found that “the totality of the circumstances—

i.e. the tip from a confidential source, the utility bills, and [Detective] Quior’s observations of

activity at the property—provide probable cause for the issuance of a search warrant for the

Welsh Avenue property.”

       {¶42} As discussed above, the evidence obtained from the thermal imaging scan should

have been suppressed, so any reference to the results of the scan must be therefore stricken from

this affidavit as well. When a trial court determines that a portion of the affidavit supporting a

search warrant must be stricken, the question becomes whether the remaining averments in the

affidavit “provided a substantial basis for the judge to conclude that there was ‘a fair probability

that contraband or evidence of a crime [would] be found [in a particular place.]’” State v. Perry,

9th Dist. Lorain No. 15CA010889, 2017-Ohio-1185, ¶ 12, quoting State v. Jackson, 9th Dist.

Lorain No. 14CA010593, 2015-Ohio-3520, ¶ 32, quoting State v. Stull, 9th Dist. Summit No.
                                                 19


27036, 2014-Ohio-1336, ¶ 14, quoting George, 45 Ohio St.3d 325, at paragraph one of the

syllabus.

       {¶43} With no evidence of any oral testimony presented to the issuing judge in

conjunction with the affidavit, we are once again limited to the four corners of the affidavit in

our review. See Castagnola, 145 Ohio St.3d at 25. Although Detective Quior testified at the

suppression hearing as to some additional information such as his investigation into Mr.

Henderson’s criminal background, his surveillance of the residence revealing that the trash was

never put out front, and the fact that he actually knew the informant and had used him in the past,

none of that information was included in the affidavit supporting the warrant to search the house.

       {¶44} The affidavit vaguely references the police “investigating” Mr. Henderson for

marijuana cultivation, but provides no details regarding the investigation and reveals no

information corroborating the anonymous tip that alleged illegal activity is occurring within the

residence. It refers to the anonymous tip, but does not address the tipster’s veracity, reliability,

or basis of knowledge. See Gates, 462 U.S. at 239. It simply provides a physical description of

Mr. Henderson and states that Detective Quior personally observed his presence one time in the

front yard of the residence. It describes a vehicle registered to Mr. Henderson and references the

anonymous tip that the same color and type of vehicle can be seen in the driveway of the

residence, but it provides no information supporting the informant’s assertion of any illegality as

being reliable.    “An accurate description of a subject’s readily observable location and

appearance is of course reliable in this limited sense: It will help the police correctly identify the

person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has

knowledge of concealed criminal activity.” Florida v. J.L., 529 U.S. 266, 272 (2000). With

anonymous tips, there must be some indicia of reliability as to the assertion of illegality, not just
                                               20


its tendency to identify a specific person. State v. Cunningham, 9th Dist. Summit No. 26744,

2014-Ohio-1924, ¶ 7, citing J.L. at 272.

       {¶45} At best, one can ascertain from this affidavit what Mr. Henderson looks like,

where he lives, what vehicle he drives, the name of the man renting the house, and how much

electricity the house has used in the past year. Therefore, even while giving great deference to

the issuing judge’s determination of probable cause, and while recognizing that doubtful or

marginal cases should be resolved in favor of upholding the warrant, we are once again

constrained to conclude that this “bare bones” affidavit supporting the warrant to search the

residence at 1262 Welsh Avenue does not include enough information to support a determination

that probable cause existed. Moreover, we again conclude that the affidavit is so lacking in

indicia of probable cause as to render official belief in its existence entirely unreasonable,

therefore rendering the good faith exception to the exclusionary rule inapplicable. See George,

45 Ohio St.3d at 331, citing Leon, 468 U.S. at 923.

       {¶46} Because the trial court’s findings of fact are not supported by competent, credible

evidence, we must conclude that the trial court erred in upholding the search warrant for the

residence at 1262 Welsh Avenue and, thus, erred in not suppressing the evidence obtained from a

search of that residence.

       {¶47} We recognize that an illegal marijuana grow operation was indeed ultimately

discovered in Mr. Henderson’s basement, but we simply cannot ignore the fatal deficiencies

permeating the two search-warrant affidavits presented to the issuing judge in this case. “There

is always a temptation in criminal cases to let the end justify the means, but as guardians of the

Constitution, we must resist that temptation.” State v. Gardner, 135 Ohio St.3d 99, 2012-Ohio-

5683, ¶ 24.
                                                21


       {¶48} Mr. Henderson’s sole assignment of error is sustained.

                                                III.

       {¶49} Mr. Henderson’s sole assignment of error is sustained. The judgment of the

Summit County Court of Common Pleas is reversed, and the cause is remanded for further

proceedings in accordance with this opinion.

                                                                               Judgment reversed
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT
                                                 22


HENSAL, J.
CONCURS.

CARR, J.
DISSENTING.

        {¶50} I respectfully dissent from the judgment of the majority, as I would affirm the trial

court’s judgment based on the limited arguments made on appeal. Henderson’s challenge on

appeal with respect to the anonymous tip does not relate to the sufficiency of the warrant for

thermal imaging. Instead, in his brief, he states the facts “are insufficient to support a reasonable

suspicion of criminal activity warranting the issuance of the subpoena to Ohio Edison for electric

usage data and comparison.” The majority views this as a typographical error and proceeds to

analyze the sufficiency of the warrant for the thermal imaging search and considers the nature of

the tip in so doing. Notably, Henderson’s motion to suppress repeated the same allegation

contained in his brief, and, even the trial court’s judgment entry states that Henderson’s first

argument was a challenge to “the sufficiency of the subpoena * * * for the electricity usage date

because it was based on information received from an anonymous tip.” Accordingly, I cannot

say that Henderson’s statement in his brief was a typographical error. As I cannot say that

Henderson has adequately challenged the issue that the majority has raised and found to be

reversible error, I respectfully dissent.


APPEARANCES:

JEFFREY N. JAMES, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
