[Cite as State v. Stambaugh, 2012-Ohio-5568.]


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

STATE OF OHIO                                       C.A. No.        12CA0027

        Appellant

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
STACY M. STAMBAUGH                                  COURT OF COMMON PLEAS
                                                    COUNTY OF WAYNE, OHIO
        Appellee                                    CASE No.   11-CR-0244

                                DECISION AND JOURNAL ENTRY

Dated: December 3, 2012



        DICKINSON, Judge.

                                           INTRODUCTION

        {¶1}    While executing a search warrant, sheriff’s deputies found a straw in Stacey

Stambaugh’s pocket that had drug residue on it. They also found an oxycodone pill in her purse.

The Grand Jury indicted Ms. Stambaugh for drug possession and illegal use or possession of

drug paraphernalia. She moved to suppress the evidence, arguing that the deputies improperly

searched her purse and pockets. The trial court granted the motion, concluding that the searches

were outside the scope of the warrant. The State has appealed, arguing that the court incorrectly

granted the motion to suppress. We affirm in part because the search warrant did not authorize

the deputies to search Ms. Stambaugh’s person. We reverse in part because the trial court

incorrectly concluded that the deputies were not permitted to search her purse.
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                                         BACKGROUND

       {¶2}    Deputy Sheriff Matthew Morris submitted an affidavit for search warrant to a

common pleas court judge detailing his investigation into a psilocybin mushroom and marijuana

growing operation that he believed was connected with several addresses, including a trailer at

3669 East Sterling Road, Lot #8 in Creston. Based on the affidavit, a judge issued a search

warrant for the East Sterling Road “residence . . . as well as the persons inside said structure, the

vehicles of persons located therein, and the curtilage of said premises, for certain concealed

property, namely:     [p]silocybin [m]ushrooms and/or [m]arihuana, or any other controlled

substance . . . drug devices, instruments, or paraphernalia used to produce, administer or prepare

for sale, controlled substances . . . .” Deputies and drug enforcement agents executed the warrant

a few days later.

       {¶3}    According to Agent Theresa McCann, when the search-warrant team arrived, Ms.

Stambaugh was sitting in a lawn chair outside the trailer smoking a cigarette. The chair was on a

patio near the stairs that led to the door of the trailer. A deputy approached her, told her to put

her hands on the trailer, and secured her in handcuffs. Agent McCann then searched Ms.

Stambaugh, including going “directly into her pockets.” Inside one of the pockets, she found a

cut-off piece of straw that she retained for later testing. She then took Ms. Stambaugh inside the

trailer so that Ms. Stambaugh could be with her teenage son. She stayed with Ms. Stambaugh as

deputies searched the house, including Ms. Stambaugh’s purse, which was inside the house.

       {¶4}    Deputy Michael Burkey testified that inside Ms. Stambaugh’s purse he found a

vial with three different types of unmarked pills. After he explained Ms. Stambaugh’s Miranda

rights, she gave a written statement. According to the statement, the reason she had the piece of

straw in her pocket was because she had seen it on the ground outside the trailer and was going
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to put it in a trash can when she finished smoking. She wrote that a neighbor gave her the pills

that were in her purse after she told the neighbor that she had been having trouble sleeping.

        {¶5}   Ms. Stambaugh moved to suppress the evidence seized during the raid, including

the pills, the piece of straw, laboratory reports derived from the testing of the pills and the straw,

her written statement, and any evidence derived from those items. Following a hearing, the trial

court found that Deputy Morris’s affidavit “[a]rguably” established probable cause to search the

trailer. It found that Agent McCann’s search of Ms. Stambaugh’s pockets, however, was not

permitted under the search warrant because the warrant only gave the agent permission to search

people inside the trailer. Finding that Ms. Stambaugh’s purse was inside her car at the time of

the search, the court concluded that the warrant did not give Deputy Burkey permission to search

it because it only authorized a search of the vehicles of people who were inside the residence. It,

therefore, granted Ms. Stambaugh’s motion and suppressed all of the evidence obtained during

the raid.

                                    STANDARD OF REVIEW

        {¶6}   A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8. Generally, a reviewing court “must accept

the trial court’s findings of fact if they are supported by competent, credible evidence.” Id. But

see State v. Metcalf, 9th Dist. No. 23600, 2007-Ohio-4001, ¶ 14 (Dickinson, J., concurring). The

reviewing court “must then independently determine, without deference to the conclusion of the

trial court, whether the facts satisfy the applicable legal standard.” Burnside, 2003-Ohio-5372, at

¶ 8.
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                                           POCKET SEARCH

          {¶7}     The State’s first assignment of error is that the trial court incorrectly granted Ms.

Stambaugh’s motion to suppress on the basis that the search of her person exceeded the scope of

the warrant. According to the State, the warrant specifically authorized law enforcement officers

to search “the structure located at 3669 East Sterling Road” and “persons . . . upon the curtilage

of said property.” It has argued that, because Ms. Stambaugh was sitting near the trailer and

within the curtilage of the property at the time the warrant was executed, she was subject to

search.

          {¶8}     The State has misquoted the search warrant. The warrant authorized the search of

the trailer “as well as the persons inside said structure, the vehicles of persons located therein,

and the curtilage of said premises, for certain concealed property[.]” “Because search warrants

are the product of specific rule and statute . . . , their creation and application must be strictly

construed.” State v. Strzesynski, 6th Dist. No. WD-85-68, 1986 WL 4660, *2 (Apr. 18, 1986);

see State v. Mansfield, 9th Dist. No. 06CA0022-M, 2007-Ohio-333, ¶ 22 (“The items to be

located and seized pursuant to a search warrant must be identified with sufficient particularity.”).

Under the plain language of the warrant, only people “inside [the] structure” were allowed to be

searched.        Ms. Stambaugh was not inside the trailer when agents executed the warrant.

Accordingly, the search of her person was outside its scope. It, therefore, was a warrantless

search. See State v. Morrison, 8th Dist. No. 88129, 2007-Ohio-3895, ¶ 9. This case is

distinguishable from State v. McClendon, 12th Dist. No. CA2006-06-025, 2007-Ohio-1656,

because the search warrant in that case specifically provided that police could search “any person

found on the premises,” not just “inside [the] structure” as in this case Id. at ¶ 4.
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       {¶9}    “[W]arrantless searches are ‘per se unreasonable under the Fourth Amendment

subject only to a few specifically established and well-delineated exceptions.’” State v. Kessler,

53 Ohio St. 2d 204, 207 (1978) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 454-55

(1971)). The State has argued that the warrant for the search of the curtilage implicitly gave law

enforcement authority to conduct investigative detentions of anyone they found on the premises

who could be reasonably connected to the property. While this justification may have allowed

the agents to stop Ms. Stambaugh and pat her down for weapons, that is not what happened in

this case. The agents who executed the warrant ordered Ms. Stambaugh to put her hands against

the wall of the trailer, handcuffed her, and went “directly into her pockets” to look for

contraband. See State v. Jordan, 2d Dist. No. 05CA0004, 2006-Ohio-1813, ¶ 26 (explaining

that, even if an investigatory detention is justified, a frisk for weapons is only authorized if there

are reasonable grounds to believe that the detainee is armed and dangerous). The facts of this

case do not resemble an investigatory detention followed by a limited search for weapons.

       {¶10} The State has argued that the search of Ms. Stambaugh’s person was also

authorized under State v. Forts, 107 Ohio App. 3d 403 (9th Dist. 1995). In Forts, police

obtained a warrant to search Sandra Forts’ residence for drugs as well as anyone found “in the

residence.” Id. at 404. Officers ended up stopping and searching Ms. Forts in an alley as she

walked toward the residence a few feet from the door. We upheld the trial court’s denial of her

motion to suppress, concluding that the search warrant should not be applied literally because

Ms. Forts was “reasonably identifiable with the purpose of the warrant” and “was in fact heading

back into the residence” at the time she was stopped. Id. at 406. In this case, there is nothing in

Deputy Morris’s affidavit or that was observed by agents before they executed the warrant to
                                                   6


suggest that Ms. Stambaugh was connected with the drug activity suspected at the trailer. See id.

We, therefore, conclude that Forts is distinguishable.

          {¶11} The trial court correctly determined that the search of Ms. Stambaugh’s person

was outside the scope of the search warrant. The State has failed to establish that any of the

recognized exceptions to the warrant rule applies. The State’s first assignment of error is

overruled.

                                          PURSE SEARCH

          {¶12} The State’s second assignment of error is that the trial court’s findings of fact and

conclusions of law are not supported by competent, credible evidence. Specifically, it has

argued that the court mistakenly found that Ms. Stambaugh’s purse was inside her vehicle, not

the trailer. It has argued that, because of the mistake, the court incorrectly concluded that

Deputy Burkey did not have authority to search the purse. According to the State, because the

purse was in the trailer at the time agents executed the warrant, it was within the scope of the

search.

          {¶13} Ms. Stambaugh has conceded that the trial court mistakenly found that her purse

was inside of her car instead of the trailer. She has argued, however, that the entire search

warrant was improper because there was insufficient evidence connecting the trailer with

criminal activity.

          {¶14} A court issuing a search warrant is required to “make a practical, common-sense

decision whether, given all the circumstances set forth in the affidavit . . . , 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, paragraph one of the syllabus (1989) (quoting Illinois v. Gates, 462
                                                  7


U.S. 213, 238 (1983)). “In reviewing the sufficiency of probable cause in an affidavit submitted

in support of a search warrant . . . . a reviewing court is simply to ensure that the [trial court] had

a substantial basis for concluding that probable cause existed.” Id. at paragraph two of the

syllabus. “[R]eviewing 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. at 330 (citing Gates, 462 U.S. at 237 n. 10).

       {¶15} In his affidavit, Deputy Morris wrote that, in December 2010, the Medway Drug

Enforcement Agency learned from a confidential informant that Brian Brown was a supplier of

psilocybin mushrooms. Three months later, the informant provided the agency with a bag of

chocolate candy that contained ground-up psilocybin mushrooms that he claimed to have

received as a gift from Mr. Brown. Deputy Morris provided details about the various places that

Mr. Brown grew psilocybin mushrooms, Mr. Brown’s assistants, and the controlled purchases

that he and other agents had made from Mr. Brown while undercover. He further described what

he had learned from Mr. Brown about Mr. Brown’s marijuana and psilocybin-mushroom

growing operations.

       {¶16} Regarding the trailer on East Sterling Road, Deputy Morris wrote that it belongs

to Justin Graham, from whom he made a controlled purchase of Oxycodone. He wrote that, in

April 2011, agents observed Mr. Brown and Mr. Graham carrying two Rubbermaid containers

into the trailer that were identical in appearance to two containers with psilocybin spores that Mr.

Brown had with him during a controlled purchase. Four days later, Mr. Brown told Deputy

Morris during another controlled purchase that he had been living at the trailer for the past four

days. Mr. Brown’s statement that he was living at the trailer was consistent with a statement that
                                                 8


Mr. Brown made to Deputy Morris during another conversation in which he said he was living in

Creston.

       {¶17} Two weeks after the controlled purchase in which Mr. Brown told Deputy Morris

that he was living at the trailer, Deputy Morris attempted to make another controlled purchase

from Mr. Brown, but the mushrooms were not ready yet. At the end of the meeting, Mr. Brown

asked the deputy to drive him to the East Sterling Road trailer.

       {¶18} Deputy Morris’s affidavit provided extensive information about Mr. Brown’s

psilocybin mushroom and marijuana growing operations. It also provided facts suggesting that

Mr. Brown had moved some of his mushroom production to the East Sterling Road trailer and

that he was living at the trailer. Upon review of the affidavit, we conclude that it gave the

common pleas court judge a substantial basis on which to find that there was a fair probability

that the trailer contained contraband. We, therefore, reject Ms. Stambaugh’s argument that the

search warrant was not supported by probable cause.

       {¶19} The trial court incorrectly found that Ms. Stambaugh’s purse was in her car at the

time of the execution of the search warrant. Because it was actually inside the trailer and was a

place in which drugs or drug devices could be found, Deputy Burkey had authority to search it.

The State’s second assignment of error is sustained.

       {¶20} Because the trial court concluded that the search of Ms. Stambaugh’s purse and

person were unauthorized, it suppressed, without further analysis, all of the evidence that flowed

from the seizures, including the lab reports and Ms. Stambaugh’s written statement. In light of

the fact that the search of the purse was proper, we remand this matter to the trial court so that it

may consider, in the first instance, whether the lab reports and written statement should be

suppressed for the other reasons Ms. Stambaugh advanced in her motion to suppress.
                                                 9


                                         CONCLUSION

       {¶21} The search warrant gave law enforcement personnel authority to search anyone

inside the trailer, but not on the curtilage of the property. The trial court incorrectly found that

Ms. Stambaugh’s purse was inside her car. The judgment of the Wayne County Common Pleas

Court is affirmed in part and reversed in part, and this case is remanded for further findings of

fact and conclusions of law regarding Ms. Stambaugh’s motion to suppress.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             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 Wayne, 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 equally to both parties.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT
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WHITMORE, P. J.
CONCURS.

CARR, J.
CONCURRING.

        {¶22} While I concur in the majority’s resolution of the first assignment of error, I write

separately in regard to the second assignment of error. In light of Ms. Stambaugh’s concession

that the trial court mistakenly determined that her purse was found inside her car, I would

remand this matter for the trial court to make the initial determination regarding the legality of

the search given that the purse was actually found inside the trailer. I would not analyze that

issue in the first instance.


APPEARANCES:

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellant.

CLARKE W. OWENS, Attorney at Law, for Appellee.
