[Cite as State v. Lair, 2018-Ohio-3112.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. John W. Wise, P.J.
                                               :       Hon. W. Scott Gwin, J.
                          Plaintiff-Appellee   :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 17 CAA 09 0064
DAVID M. LAIR, JR.                             :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Delaware County
                                                   Court of Common Pleas, Case No.
                                                   17CRI030136



JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            August 3, 2018


APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

CAROL HAMILTON O’BRIEN                             TOM WALDECK
PROSECUTING ATTORNEY                               2 West Winter Street, Ste. 301
BY: KIMBERLY BURROUGHS                             Delaware, OH 43015
140 North Sandusky Street
Delaware, OH 43015
[Cite as State v. Lair, 2018-Ohio-3112.]


Gwin, J.,

        {¶1}     Defendant-appellant David M. Lair, Jr. [“Lair”] appeals the May 25, 2017

Judgment Entry of the Delaware County Court of Common Pleas overruling his motion to

suppress.

                                           Facts and Procedural History

        {¶2}     Detectives of the Delaware County Sheriff's Department prepared an

affidavit in support of an application for a search warrant to search at 101 Edgevale Road,

Columbus, Ohio 43209 for evidence involved in the commission of the crimes of theft and

breaking and entering. The residence was identified in the affidavit and the warrant as the

“Lair residence.” The warrant to search also contained a detailed physical description of

the home.

        {¶3}     The affidavit in support of the warrant indicated that David Lair was

identified by “DCSO Criminal Intelligence Analyst Brook Segaard” as an individual

captured on surveillance footage breaking and entering into WidePoint Integrated

Systems and stealing $24,845.60 worth of cell phones and other devices from the

premises. It further indicated that four of the stolen devices were sold at an ecoATM, an

automated teller machine designed for the sale of used technology.             During the

transaction, the ecoATM photographed David Lair and his wife, Wendy Lair, standing in

front of the machine. The ecoATM also photographed the driver's license of Wendy Lair,

which listed 101 Edgevale Road, Columbus, Franklin County, Ohio 43209 as her home

address. The search warrant issued by Judge Peeples of the Franklin County Municipal

Court was executed a few hours after it was issued by Detectives Overly, Yates, and
Delaware County, Case No. 17 CAA 09 0064                                                     3


Gannon of the Delaware County Sheriff's Office.          Officers recovered five additional

iPhones from the home.

       {¶4}   On March 1, 2017, Lair was indicted on three felony charges, including a

fifth degree felony of breaking and entering in violation of R.C. 2911.13(A), a fourth degree

felony theft in violation of R.C. 2913.02(A)(1), and a fifth degree felony receiving stolen

property in violation of R.C. 2913.51(A). On April 27, 2017, Lair filed a motion to suppress

the evidence obtained after execution of the search warrant. In his written motion, Lair

argued that the affidavit filed in support of the search warrant did not sufficiently establish

probable cause to support the warrant. Specifically, Lair argued that the affidavit did not

sufficiently state a nexus between the residence to be searched and the evidence to be

seized.

       {¶5}   The trial court held an evidentiary hearing on Lair’s motion to suppress on

May 24, 2017. Detective Overly testified that he wrote arrest warrants for David and

Wendy Lair for the commission of the breaking and entering and theft offenses at

WidePoint Integrated Systems. Those arrest warrants were supported by an affidavit of

probable cause. Detective Overly testified that Detective Chuck Gannon, also of the

Delaware County Sheriff’s Office, wrote the search warrant. According to Detective

Overly, Detective Gannon copied the text of Detective Overly's arrest warrant probable

cause affidavit into the probable cause affidavit used to support the search warrant.

Detective Overly testified that, at the time he and other officers executed the search

warrant signed by Judge Peeples, they had no reason to believe the warrant itself was

invalid.
Delaware County, Case No. 17 CAA 09 0064                                                     4


       {¶6}   After hearing all evidence, the trial court denied Lair's motion to suppress.

The court agreed with Lair and found that the affidavit offered to support the warrant was,

in fact, insufficient to prove probable cause because it failed to sufficiently state, "why the

property is where [the detectives] say it is.” T. at 47, 50. The court then considered

whether the warrant was "so totally inadequate" that it would have "raised the awareness"

of the detectives who sought the warrant such that they "should have known better" and

whether the detectives "executed this warrant in good faith.” T. at 50. The court found

that the detectives did not act "falsely or knowingly," and that no officer misconduct was

involved in the execution of the warrant. T. at 52. At most, the court found, the officers

had "probably" acted negligently. T. at 52. Given that, the court declined to suppress the

evidence, holding that the matter fell within "the exception of good faith" to the

exclusionary rule. T. at 52. The trial court filed a Judgment Entry incorporating its findings

and overruling Lair’s motion to suppress on May 25, 2017.

       {¶7}   Lair subsequently pled no contest to count two of the indictment, and the

state agreed to dismiss counts one and three.           The trial court imposed a term of

imprisonment on that offense.

                                        Assignment of Error

       {¶8}   Lair raises one assignment of error,

       {¶9}   “I. THE TRIAL COURT ERRORED IN OVERRULING THE DEFENDANT-

APPELLANT'S MOTION TO SUPPRESS EVIDENCE FILED ON MAY 25, 2017.”

       STANDARD OF APPELLATE REVIEW.

       {¶10} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 797 N.E.2d 71, 74, 20030-
Delaware County, Case No. 17 CAA 09 0064                                                   5


Ohio-5372 at ¶ 8. When ruling on a motion to suppress, the trial court assumes the role

of trier of fact and is in the best position to resolve questions of fact and to evaluate

witness credibility. See State v. Dunlap (1995), 73 Ohio St.3d 308, 314, 652 N.E.2d 988;

State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583. Accordingly, a reviewing

court must defer to the trial court's factual findings if competent, credible evidence exists

to support those findings. See Burnside, supra; Dunlap, supra; State v. Long (1998), 127

Ohio App.3d 328, 332, 713 N.E.2d 1; State v. Medcalf (1996), 111 Ohio App.3d 142, 675

N.E.2d 1268.    However, once this Court has accepted those facts as true, it must

independently determine as a matter of law whether the trial court met the applicable legal

standard. See Burnside, supra, citing State v. McNamara (1997), 124 Ohio App.3d 706,

707 N.E.2d 539; See, generally, United States v. Arvizu (2002), 534 U.S. 266, 122 S.Ct.

744; Ornelas v. United States (1996), 517 U.S. 690, 116 S.Ct. 1657. That is, the

application of the law to the trial court's findings of fact is subject to a de novo standard

of review. Ornelas, supra. Moreover, due weight should be given “to inferences drawn

from those facts by resident judges and local law enforcement officers.” Ornelas, supra

at 698, 116 S.Ct. at 1663.

       ISSUE FOR APPEAL

       Whether the search warrant issued for the search of the Lair residence was so

obviously invalid that the officers' conduct in relying on the warrant falls beyond the scope

of the good faith exception to the Fourth Amendment exclusionary rule, and evidence

gathered during the search of the Lair residence should have been suppressed.

       {¶11} In reviewing the affidavit in this case, we are guided by the following

instruction by the Ohio Supreme Court: ““[R]eviewing courts may not substitute their own
Delaware County, Case No. 17 CAA 09 0064                                                 6


judgment for that of the issuing magistrate by conducting a de novo determination as to

whether the affidavit contains sufficient probable cause upon which the reviewing court

would issue the search warrant. On the contrary, reviewing 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.” State v. George,

45 Ohio St.3d 325, 330, 544 N.E.2d 640 (1989), paragraph two of the syllabus; Illinois v.

Gates, 462 U.S. 213, 238–239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), internal citations

omitted. “‘[T]he duty of a reviewing court is simply to ensure that the magistrate had a

‘substantial basis for * * * conclud[ing]’ that probable cause existed.” State v. George,

supra at 329, 544 N.E.2d 640, citing Gates, 462 U.S. at 238–239, 103 S.Ct. 2317. See

also, State v. Norman, 5th Dist. Guernsey No. 2010-CA-21, 2011-Ohio-568, 2011 WL

415000 at ¶ 33.

       {¶12} In assessing whether a party has met its burden of proof, the Ohio Supreme

Court has stated, “[t]he degree of proof required is determined by the impression which

the testimony of the witnesses makes upon the trier of facts, and the character of the

testimony itself. Credibility, intelligence, freedom from bias or prejudice, opportunity to

be informed, the disposition to tell the truth or otherwise, and the probability or

improbability of the statements made, are all tests of testimonial value. Cross v. Ledford,

161 Ohio St. 469, 477, 120 N.E.2d 118, 123 (1954). See also, Rice v. City of Cleveland,

144 Ohio St. 299, 58 N.E.2d 768 (1944)”. “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, commonsense decision whether, given all the

circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of
Delaware County, Case No. 17 CAA 09 0064                                                  7


knowledge’ of persons supplying hearsay information, there is a fair probability that

contraband or evidence of a crime will be found in a particular place.’” State v. George,

45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph one of the syllabus, quoting Illinois

v. Gates, 462 U.S. 213, 238–39, 103 S.Ct. 2317, 76 L.Ed.2d 527. See also, State v.

Norman, supra, 2011-Ohio-568, 2011 WL 415000, ¶ 38.

      {¶13} Moreover, evidence obtained by a law enforcement officer 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 will not be barred

by the application of the exclusionary rule. See George, 45 Ohio St.3d 325, 544 N.E.2d

640 at paragraph three of the syllabus, citing United States v. Leon, 468 U.S. 897, 104

S.Ct. 3405, 82 L.Ed.2d 677 (1984). Finally, an officer executing a valid warrant may seize

an item not described in the warrant if “it was ‘immediately apparent’ that the item was

incriminating.” State v. Waddy, supra 63 Ohio St.3d at 442, 588 N.E.2d 819, citing

Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

See also Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

      {¶14} In the case at bar, the trial court found the search warrant to be insufficient,

however the trial court ruled the officers who executed the warrant acted in “good faith.”

      1. The “good faith exception” to the exclusionary rule.

      {¶15} The Fourth Amendment provides that, “no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the place to

be searched, and the persons or things to be seized.” However, in Leon, the United

States Supreme Court recognized that “the Fourth Amendment exclusionary rule should

not be applied so as to bar the use in the prosecution’s case-in-chief of evidence obtained
Delaware County, Case No. 17 CAA 09 0064                                                  8


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, 45 Ohio St.3d 325, 544 N.E.2d 640 at paragraph three of the syllabus.

In other words, if an affidavit lacks probable cause, an exception to the exclusionary rule

exists where “‘the officer conducting the search acted in objectively reasonable reliance

on a warrant issued by a detached and neutral magistrate.’” United States v. Watson,

498 F.3d 429, 431 (6th Cir.2007), quoting Massachusetts v. Sheppard, 468 U.S. 981,

987–88 (1984). “This is known as the good-faith exception.” United States v. Rose, 714

F.3d 362, 367 (6th Cir.2013). See, State v. Dibble, 10th Dist. Franklin No. 13AP-798,

2014-Ohio-5754, ¶15.

      {¶16} The good-faith exception to the exclusionary rule is limited in its application.

George, 45 Ohio St.3d at 331; United States v. Leon, 468 U.S.at 923. The Leon court

cautioned, “[s]uppression remains an appropriate remedy” when the court finds that any

one of the following four circumstances exist:

             (1) * * * the magistrate or judge * * * was misled by information in an

      affidavit that the affiant knew was false or would have known was false

      except for his reckless disregard of the truth * * * “; (2) “ * * * the issuing

      magistrate wholly abandoned his judicial role * * * “; (3) an officer purports

      to rely upon “ * * * a warrant based on an affidavit ‘so lacking in indicia of

      probable cause as to render official belief in its existence entirely

      unreasonable ’ “; or (4) “ * * * depending on the circumstances of the

      particular case, a warrant may be so facially deficient—i.e., in failing to
Delaware County, Case No. 17 CAA 09 0064                                                   9


       particularize the place to be searched or the things to be seized—that the

       executing officers cannot reasonably presume it to be valid. * * *

George, 45 Ohio St.3d at 331; Leon, 468 U.S. at 923; Dibble 2014-Ohio-5745, ¶16.

       {¶17} In State v. Dibble, the Court observed,

             An affidavit lacks the requisite indicia of probable cause if it is a “bare

      bones” affidavit.   United States v. Laughton, 409 F.3d 744, 748 (6th

      Cir.2005), citing Leon at 914–23. The inquiry into whether an affidavit is so

      bare bones as to preclude application of the good-faith exception is a less

      demanding inquiry than that involved in determining whether an affidavit

      provides a substantial basis for the magistrate’s conclusion of probable

      cause. Id. at 748, citing Leon at 914–23. The Sixth Circuit has defined a

      “bare bones” affidavit as one that states “suspicions, beliefs, or conclusions,

      without providing some underlying factual circumstances regarding

      veracity, reliability, and basis of knowledge.” Id. at 748–49, citing United

      States v. Weaver, 99 F.3d 1372, 1378 (6th Cir.1996).

10th Dist. Franklin No. 13AP-798, 2014-Ohio-5754, ¶17.

      {¶18} In the case at bar, the affidavit in support of the search warrant contains an

address and a detailed physical description of the residence to be searched. Further, the

affidavit of Detective Overly states the date of the breaking and entering of the WidePoint

Integrated Systems location, and the number and type of cellular devices that were stolen.

The affidavit indicates that a photograph of the suspects, a male and a female was

obtained by video from an ecoATM in Walmart #3447, located at 3657 East Main Street,

Columbus, Ohio 43213. A driver license photograph from the transaction identified the
Delaware County, Case No. 17 CAA 09 0064                                               10


female suspect as Wendy R. Lair. The affidavit in support of the warrant indicated that

David Lair was identified by “DCSO Criminal Intelligence Analyst Brook Segaard” as the

male suspect. Thus, the affidavit in the case at bar, was not “bare bones.” Nor did the

affidavit merely posit suspicions, beliefs, or conclusions, without providing some

underlying factual circumstances regarding veracity, reliability, and basis of knowledge.

      {¶19} In State v. George, the Ohio Supreme Court observed,

             However, even were we to determine that this affidavit did not furnish

      the judge with a substantial basis for concluding that there was probable

      cause to search the house, we would be compelled nevertheless to uphold

      this search based upon the “good faith exception” to the exclusionary rule

      set forth in United States v. Leon, supra, and adopted by this court in State

      v. Wilmoth (1986), 22 Ohio St.3d 251, 22 OBR 427, 490 N.E.2d 1236.

      Unlike the case before us, State v. Wilmoth involved not the issue of

      probable cause but defects in the warrant procedure under Crim.R. 41.

      However, Leon, supra, held that the Fourth Amendment exclusionary rule

      should not be applied so as to 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. Id. at 918–923, 926, 104 S.Ct.

      at 3418–3421, 3422.

45 Ohio St.3d 325, 330, 544 N.E.2d 640(1989).

      {¶20} Under these circumstances, we find “the officers’ reliance on the [judge’s]

determination of probable cause was objectively reasonable, and application of the
Delaware County, Case No. 17 CAA 09 0064                                              11

extreme sanction of exclusion … [would be] inappropriate.” United States v. Leon, 468

U.S. 897, 926, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). This is not a case where “the

warrant was based on an affidavit so lacking in indicia of probable cause as to render

official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923, 104 S.Ct.

3405 (internal quotation marks omitted). It is not unreasonable to believe that the

suspects would store the stolen items in their home, or that other evidence of the crimes

would be found at the residence.

      {¶21} We find the execution of the warrant and resulting seizure of contraband

were well within the standards of the “good faith exception” to the exclusionary rule set

forth in United States v. Leon. State v. George, 45 Ohio St.3d at 332, 544 N.E.2d 640.

      {¶22} Lair’s sole assignment of error is overruled.

      {¶23} The judgment of the Delaware Court of Common Pleas is affirmed.



By Gwin, J.,

Wise, P.J., and

Baldwin, J., concur
