[Cite as State v. Robinson, 2016-Ohio-7823.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              DEFIANCE COUNTY


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 4-16-10

        v.

JAMISH L. ROBINSON,                                       OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 4-16-11

        v.

JAMISH L. ROBINSON,                                       OPINION

        DEFENDANT-APPELLANT.


                Appeals from Defiance County Common Pleas Court
                  Trial Court Nos. 15 CR 12248 and 15 CR 12140

                                     Judgments Affirmed

                          Date of Decision: November 21, 2016


APPEARANCES:

        W. Alex Smith for Appellant

        Russell R. Herman for Appellee
Case Nos. 4-16-10, 4-16-11


PRESTON, J.

       {¶1} Defendant-appellant, Jamish L. Robinson (“Robinson”), appeals the

April 20, 2016 judgment entries of sentence of the Defiance County Court of

Common Pleas. On appeal, he argues that the trial court erred by denying his

motions to suppress evidence seized as a result of the execution of a search warrant

that Robinson argues was not based on probable cause. For the reasons that follow,

we affirm the judgments of the trial court.

       {¶2} These cases stem from the execution of a search warrant issued for

Robinson’s residence, after investigators learned that Robinson was the manager of

Talk-N-Win, a suspected illegal-gambling establishment located at the Northtowne

Mall in Defiance, Ohio. On February 5, 2015, the Defiance County Grand Jury

indicted Robinson on: four counts of aggravated trafficking in drugs in violation of

R.C. 2925.03(A)(1), (C)(1)(a), fourth-degree felonies; one count of aggravated

trafficking in drugs in violation of R.C. 2925.03(A)(1), (C)(1)(b), a third-degree

felony; three counts of trafficking in drugs in violation of R.C. 2925.03(A)(1),

(C)(2)(a), fifth-degree felonies; two counts of aggravated possession of drugs in

violation of R.C. 2925.11(A), (C)(1)(a), fifth-degree felonies; and one count of

possession of cocaine in violation of R.C. 2925.11(A), (C)(4)(a), a fifth-degree

felony. (Case No. 15 CR 12140, Doc. No. 1). That case was assigned case No. 15




                                         -2-
Case Nos. 4-16-10, 4-16-11


CR 12140, and Robinson pled not guilty to the counts of the indictment. (See Case

No. 15 CR 12140, Doc. No. 4).

      {¶3} On May 13, 2015, the Defiance County Grand Jury indicted Robinson

on four counts of receiving stolen property in violation of R.C. 2913.51(A), fourth-

degree felonies. (Case No. 15 CR 12248, Doc. No. 1). That case was assigned case

No. 15 CR 12248, and Robinson pled not guilty to the counts of that indictment.

(See Case No. 15 CR 12248, Doc. No. 5).

      {¶4} On October 19, 2015, Robinson filed motions to suppress evidence in

each case. (Case No. 15 CR 12140, Doc. No. 15); (Case No. 15 CR 12248, Doc.

No. 7). In those identical motions, Robinson argued that the search warrant was not

supported by probable cause because there was no evidence that illegal gambling

took place at his residence or that any part of Talk-N-Win was run out of his

residence. (Id.); (Id.). The trial court held a hearing on Robinson’s motions to

suppress on November 24, 2015. (Nov. 24, 2015 Tr. at 3). The trial court denied

Robinson’s motions to suppress on December 7, 2015. (Case No. 15 CR 12140,

Doc. No. 16); (Case No. 15 CR 12248, Doc. No. 8).

      {¶5} The trial court held a change-of-plea hearing on February 9, 2016. (Feb.

9, 2016 Tr. at 2). Pursuant to a plea agreement, Robinson pled no contest: in case

No. 15 CR 12140, to the count of possession of cocaine in violation of R.C.

2925.11(A), (C)(4)(a), and to one of the counts of aggravated possession of drugs


                                        -3-
Case Nos. 4-16-10, 4-16-11


in violation of R.C. 2925.11(A), (C)(1)(a); in case No. 15 CR 12248, to two of the

counts of receiving stolen property in violation of R.C. 2913.51(A). (Id. at 4-5, 11).

The trial court accepted Robinson’s pleas and found him guilty on those counts. (Id.

at 12-13); (Case No. 15 CR 12140, Doc. No. 18); (Case No. 15 CR 12248, Doc. No.

10).

       {¶6} On April 12, 2016, the trial court sentenced Robinson and, consistent

with the plea agreement, dismissed the remaining counts of the indictments. (Apr.

12, 2016 Tr. at 2, 5); (Case No. 15 CR 12140, Doc. No. 26); (Case No. 15 CR 12248,

Doc. No. 18). The trial court filed its judgment entries of sentence on April 20,

2016. (Case No. 15 CR 12140, Doc. No. 26); (Case No. 15 CR 12248, Doc. No.

18).

       {¶7} Robinson timely filed notices of appeal in each case. (Case No. 15 CR

12140, Doc. No. 23); (Case No. 15 CR 12248, Doc. No. 15). He raises one

assignment of error for our review.

                               Assignment of Error

       The trial court erred when they [sic] overruled the motion to
       suppress evidence in violation of the 4th and 14th Amendment
       [sic] to the United States Constitution and Article I Section 14 of
       the Ohio Constitution.

       {¶8} In his sole assignment of error, Robinson argues that the trial court erred

by denying his motion to suppress because the “[search] warrant should not have

been issued due to insufficient, credible information in the supporting affidavit.”

                                         -4-
Case Nos. 4-16-10, 4-16-11


(Appellant’s Brief at 5). Specifically, Robinson argues “that there was no indication

of criminal activity occurring in the home when the target was Mr. Robinson’s place

of employment.” (Id.).

       {¶9} A review of the denial of a motion to suppress involves mixed questions

of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At a

suppression hearing, the trial court assumes the role of trier of fact and, as such, is

in the best position to evaluate the evidence and the credibility of witnesses. Id. See

also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a

motion to suppress, “an appellate court must accept the trial court’s findings of fact

if they are supported by competent, credible evidence.” Burnside at ¶ 8, citing State

v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s conclusions of

law, however, our standard of review is de novo, and we must independently

determine whether the facts satisfy the applicable legal standard. Id., citing State v.

McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

       {¶10} Robinson argues that the search warrant was not supported by

probable cause, in violation of his constitutional rights. The Fourth Amendment to

the United States Constitution and Article I, Section 14 of the Ohio Constitution

generally prohibit warrantless searches and seizures, and any evidence obtained

during an unlawful search or seizure will be excluded from being used against the

defendant. State v. Jenkins, 3d Dist. Union No. 14-10-10, 2010-Ohio-5943, ¶ 9;


                                         -5-
Case Nos. 4-16-10, 4-16-11


State v. Steinbrunner, 3d Dist. Auglaize No. 2-11-27, 2012-Ohio-2358, ¶ 12.

“Neither the Fourth Amendment to the United States Constitution nor Section 14,

Article I of the Ohio Constitution explicitly provides that violations of its provisions

against unlawful searches and seizures will result in the suppression of evidence

obtained as a result of such violation, but the United States Supreme Court has held

that the exclusion of evidence is an essential part of the Fourth Amendment.”

Jenkins at ¶ 9, citing Mapp v. Ohio, 367 U.S. 643, 649, 81 S.Ct. 1684 (1961) and

Weeks v. United States, 232 U.S. 383, 394, 34 S.Ct. 341 (1914).

       {¶11} “A warrant must be based on probable cause, supported by an oath or

affirmation, and contain a particular description of ‘the place to be searched, and the

persons or things to be seized.’” State v. Amodio, 9th Dist. Medina No. 11CA0048-

M, 2012-Ohio-2682, ¶ 7, quoting the Fourth Amendment to the U.S. Constitution.

“The probable cause standard falls below both the reasonable doubt and

preponderance of the evidence standards.” State v. Ortega, 3d Dist. Hancock No.

5-11-46, 2012-Ohio-5953, ¶ 25.        The Supreme Court of Ohio articulated the

probable-cause standard required to support a search warrant:

       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


                                          -6-
Case Nos. 4-16-10, 4-16-11


      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 (1989), paragraph one of the syllabus, quoting

Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317 (1983). In other words,

“[t]he amount of proof sufficient for a probable cause determination does not

necessarily require certainty that criminal activity is occurring at the defendant’s

premises.” State v. Garza, 3d Dist. Henry No. 7-13-04, 2013-Ohio-5492, ¶ 32.

Only the probability—and not a prima facie showing—of criminal activity is the

standard of probable cause. Id., citing George at 329.

      {¶12} The Supreme Court of Ohio also articulated the standard applied in

reviewing the sufficiency of probable cause:

      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


                                        -7-
Case Nos. 4-16-10, 4-16-11


       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.

George at paragraph two of the syllabus, citing Gates, 462 U.S. 213, 103 S.Ct. 2317.

       {¶13} We conclude that the judge who issued the search warrant had a

substantial basis for concluding that probable cause existed. Special Agent Edward

Biederstedt (“Biederstedt”) of the Bureau of Criminal Identification and

Investigation swore to the affidavit supporting the search warrant application. (Nov.

24, 2015 Tr., Ex. 1). Biederstedt stated that he has 27 years of law-enforcement

experience and that he had good cause to believe that Robinson’s residence

contained evidence of illegal gambling, money laundering, and engaging in a pattern

of corrupt activity. (Id. at 1-3). Biederstedt averred that he assisted Major Case

Investigator Damon Roberts (“Roberts”) in the covert investigation of Talk-N-Win.

(Id.). The affidavit details visits that Roberts made to Talk-N-Win on November 29

and 30, 2014, during which Roberts used covert funds to obtain a “player’s card” to

play games at gaming terminals. (Id. at 4-9). During each of those visits, Roberts

asked that a certain sum of money be placed on his player’s card, then he played




                                         -8-
Case Nos. 4-16-10, 4-16-11


games at gaming terminals and, when he was finished playing, retrieved winnings

from his player’s card in excess of the initial sum on his player’s card. (Id.).

       {¶14} The affidavit also details a visit that Biederstedt and Roberts made to

Talk-N-Win on December 14, 2014. (Id. at 9-11). During that visit, they observed

“behind the counter/desk” a man later identified as Robinson. (Id. at 9). The amount

on Biederstedt’s player’s card increased as he played games at gaming terminals,

and he eventually retrieved winnings from his player’s card in excess of the initial

sum on his player’s card. (Id.). When Biederstedt approached the counter with his

player’s card after ending play, there was a different person—a female—behind the

counter.   (Id. at 10-11).    Roberts and Biederstedt were at Talk-N-Win for

approximately 35 minutes. (Id. at 9, 11). Biederstedt averred that he “received

previous credible source information that Jamish Robinson is the Manager of Talk-

N-Win.” (Id. at 11).

       {¶15} Biederstedt also averred that, on December 16, 2014, he and a deputy

observed Robinson leave his residence—an apartment—in a vehicle registered to

him. (Id.). The vehicle went from the “residence to the rear parking lot of the

Northtowne Mall, near the entrance to the Talk-N-Win.” (Id.). Biederstedt later

observed Robinson “in front of the entrance to the Talk-N-Win.” (Id.). “A short

time later Robinson exited the rear entrance of the mall and entered back in his




                                         -9-
Case Nos. 4-16-10, 4-16-11


vehicle.” (Id.). He exited the mall parking lot and returned to his residence. (Id.).

Biederstedt continues in his affidavit:

       7.   Special Agent Biederstedt states that the evidence obtained from

       this investigation has provided information concerning illegal

       gambling in the Defiance, Defiance County, Ohio area.

       8.   Special Agent Biederstedt is aware that illegal gambling

       activities involve the transfer of large quantities of cash and such

       transactions involve records and documents relating to illegal

       gambling and accompanying cash transfers.

       9.   Special Agent Biederstedt holds personal knowledge–that

       individuals involved in gambling activities maintain log books,

       records, payment receipts, notes, customer lists, ledgers, and other

       records and documents, stored on their computers in electronic

       format. Special Agent Biederstedt is also aware that these records

       may be kept and stored at the personal residences of the owners and/or

       managers of the business. Through the technology available today

       individuals can access records and perform business functions

       through the leisure of their home residence.

       10. Special Agent Biederstedt [sic] personal experience and training,

       is aware that individuals involved in illegal gambling activity and/or


                                          -10-
Case Nos. 4-16-10, 4-16-11


         money laundering may maintain their own security by use of firearms

         and other weapons.

(Id.).

         {¶16} We conclude that the judge who issued the search warrant had a

substantial basis for concluding that, given all the circumstances set forth in

Biederstedt’s affidavit, there was a fair probability that evidence of illegal gambling,

money laundering, and engaging in a pattern of corrupt activity would be found at

Robinson’s residence. During their investigation, Biederstedt and Roberts engaged

in illegal gambling at Talk-N-Win. Biederstedt observed Robinson behind the

counter/desk at Talk-N-Win and learned during his investigation that Robinson was

the manager of Talk-N-Win. He also observed Robinson leave his residence, enter

Talk-N-Win for a short time, then return to his residence. Biederstedt also averred

that today’s technology allows managers of illegal gambling operations to perform

business functions remotely, including from their homes. We hold that, given all of

these circumstances, the issuing judge had a substantial basis for concluding that

probable cause existed. See State/City of Alliance v. Birch, 5th Dist. Stark No.

1997CA00333, 1998 WL 525799, *3 (Mar. 30, 1998) (“find[ing] sufficient

evidence to support probable cause for the issuance of the search warrant” for the

residence of the defendant, who was observed conducting gambling activities at a

lounge and travelling between his residence and the lounge, and who told an officer


                                         -11-
Case Nos. 4-16-10, 4-16-11


who placed a bet that “he had to go home to ‘get the odds and the lines, the latest

from Vegas’”).

       {¶17} For these reasons, the trial court did not err in denying Robinson’s

motions to suppress. Robinson’s assignment of error is overruled.

       {¶18} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgments of the trial court.

                                                               Judgments Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




                                        -12-
