[Cite as State v. Rigel, 2017-Ohio-7640.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       CLARK COUNTY

 STATE OF OHIO                                    :
                                                  :
          Plaintiff-Appellee                      :   Appellate Case No. 2016-CA-90
                                                  :
 v.                                               :   Trial Court Case No. 16-CR-30
                                                  :
 NICHOLAS R. RIGEL                                :   (Criminal Appeal from
                                                  :    Common Pleas Court)
          Defendant-Appellant                     :
                                                  :

                                             ...........

                                            OPINION

                          Rendered on the 15th day of September, 2017.

                                             ...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office,
Appellate Division, 50 E. Columbia Street, 4th Floor, Springfield, Ohio 45501
      Attorney for Plaintiff-Appellee

CHARLES KOENIG, Atty. Reg. No. 0018358 and TODD LONG, Atty. Reg. No. 0082296,
5354 North High Street, Columbus, Ohio 43214
      Attorney for Defendant-Appellant

                                            .............

HALL, P.J.
                                                                                       -2-


      {¶ 1} Nicholas Rigel appeals the trial court’s overruling of his motions to suppress

evidence obtained during the investigation of a large-scale indoor marijuana production

operation in Clark County run by him and his brother Timothy. Finding no error, we affirm.

                                     I. Background

      {¶ 2} The Clark County Sheriff’s Office began to investigate the operation in 2010.

A confidential source told police that Rigel’s brother was engaging in a “weed franchise”

arrangement with tenants in rental properties, which the source knew because he had

been a “franchisee.” In 2012, another confidential source came forward and also

described an operation in which Rigel’s brother rented out houses with marijuana-growing

operations inside. A tenant’s job, said the source, was to watch over the growing

marijuana. Timothy would then collect the finished product and take all of the evidence

away to be destroyed. After he had sold the marijuana, Timothy paid the tenant a

percentage based on the value of the growing operation. This source too had been such

a tenant.

      {¶ 3} In October 2014, a confidential informant told Detective Andrew Reynolds of

the Sheriff’s Office that he could buy marijuana from a man named Jacob Collins who

lived at 310 Villa Road. The informant said that there was a marijuana-growing operation

in the basement of the house. The informant also said that Collins used to live at 4303

Detrick-Jordan Pike, another property in Clark County, and that the informant had seen a

similar growing operation there. Guided by Detective Reynolds, the informant

successfully made two controlled buys that October from Collins at the Villa Road

property.
                                                                                           -3-


       {¶ 4} Detective Reynolds then did some research on the properties. He discovered

that, according to county property records, the Villa Road and Detrick-Jordan Pike

properties were owned by Herold Property Management LLC, which is owned by Rigel

and his wife. Reynolds discovered that the LLC owned several other residential

properties, including 1811 Hillside Avenue and 709 Mayhill Drive. Reynolds later

determined that Rigel lived at the Mayhill Drive property and that Rigel rented out the

other properties. Detective Reynolds obtained electricity-usage records for Rigel’s

properties and for comparable nearby properties. The records showed that, over the

same period of time, several of Rigel’s properties consumed significantly more electricity.

Reynolds knew from experience that abnormally high electricity usage goes along with

growing marijuana indoors. In March 2015, without obtaining a warrant, the Clark County

Sheriff’s Office had a video camera installed atop a utility pole that bordered the Detrick-

Jordan Pike property. Major Russell Garman remotely monitored the camera from March

27 until August 12, and the camera was finally removed on October 13.

       {¶ 5} Over the next several months, Detective Reynolds obtained several warrants

to aid in the Sheriff’s Office’s investigation of the Rigel brothers. On April 16, he obtained

a warrant allowing them to install a GPS tracking device on the van that Rigel drove to

suspected marijuana-growing locations. The warrant authorized the tracking device for

45 days, and the issuing judge granted two 45-day extensions. On May 5, Reynolds

obtained a warrant that allowed them to do a thermal-imaging scan of the houses on

several properties, including the houses at the Detrick-Jordan Pike and Villa Road

properties. On August 4, a warrant was issued allowing the use of a drug-sniffing dog at

several properties, including Detrick-Jordan Pike and Villa Road. On August 10, Detective
                                                                                        -4-


Reynolds obtained a warrant authorizing the search of the houses on several properties,

including the houses on the Villa Road and Detrick-Jordan Pike properties and Rigel’s

home on the Mayhill Drive property. Inside both the Villa Road and Detrick-Jordan Pike

properties police found marijuana growing operations, including more than 50 mature

plants and a large amount of harvested marijuana. In Rigel’s home was found a

spreadsheet listing the income, how many months rented, and utility and repair costs for

several rental properties, including the Villa Road, Detrick-Jordan Pike, and Hillside

Avenue properties. The same day that the properties were searched, August 12, another

confidential source came forward and told Detective Reynolds that a similar marijuana-

growing operation was in place at the Hillside Avenue property. Reynolds immediately

obtained and executed a search warrant for the Hillside Avenue property. There, police

found more marijuana-growing equipment.

      {¶ 6} Rigel was indicted in January 2016 on nine counts for the crimes of engaging

in a pattern of corrupt activity, cultivation of marijuana, and possession of marijuana. He

filed six separate motions to suppress, targeting the five search warrants and the

warrantless use of the pole camera. A hearing on the motions was held in September at

which Major Garman and Detective Reynolds testified for the State. Rigel testified on the

question of his standing to challenge the searches of the Detrick-Jordan Pike property.

The trial court sustained the motion to suppress with respect to the dog-sniff warrant but

overruled all the other motions to suppress. The court concluded that Rigel did not have

standing to challenge the searches of the Detrick-Jordan Pike property. Ultimately, under

a plea agreement, Rigel pleaded no contest to one count of third-degree felony cultivation
                                                                                           -5-


of marijuana at the Detrick-Jordan Pike property, and the remaining charges were

dismissed. The court sentenced him to two years in prison.

       {¶ 7} Rigel appealed.

                                        II. Analysis

       {¶ 8} Rigel assigns seven errors to the trial court, all of which relate to the court’s

suppression decisions. The appeal of a motion to suppress presents a mixed question of

law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶

8. “[A]n 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.” Id.

       A. Standing to challenge the searches of the Detrick-Jordan Pike property

       {¶ 9} The first assignment of error alleges that the trial court erred by concluding

that Rigel lacked standing to challenge the searches of the Detrick-Jordan Pike property.

But even assuming that Rigel does have standing, and that the trial court erred, Rigel fails

to show that he was prejudiced. After concluding that Rigel lacked standing, the trial court

went on to conclude that all the searches of the Detrick-Jordan Pike property were lawful.

As our rulings on the second, fifth, and sixth assignments of error show, we agree that

the searches were lawful. So even if Rigel has standing to challenge the searches, the

evidence obtained from the searches would not have been suppressed.

       {¶ 10} The first assignment of error is overruled.

                        B. The warrantless use of the pole camera
                                                                                        -6-


      {¶ 11} The second assignment of error alleges that the trial court erred by not

sustaining Rigel’s motion to suppress the evidence obtained and derived from the pole

camera watching the Detrick-Jordan Pike property. Rigel contends that the warrantless

use of the camera constituted an unreasonable search and that the length of the period

of monitoring made the use of the camera constitutionally unreasonable.

      {¶ 12} One has no reasonable expectation of privacy in what he “knowingly

exposes to the public.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d

576 (1967). We agree with the Sixth Circuit’s holding in United States v. Houston, 813

F.3d 282 (6th Cir.2016), that the remote surveillance of a rural farm using a utility-pole

camera without a warrant did not violate the property owner’s reasonable expectations of

privacy “because the camera recorded the same view of the farm as that enjoyed by

passersby on public roads.” Houston at 285; see also United States v. Powell, 847 F.3d

760, 773 (6th Cir.2017) (quoting the same). “[T]he Fourth Amendment,” emphasized the

court, “does not ‘preclude an officer’s observations from a public vantage point where he

has a right to be and which renders the activities clearly visible.’ ” Id. at 288,

quoting California v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986);

see also Powell at 773 (quoting the same). In other words, the use of a utility-pole camera

does not violate a property owner’s reasonable expectations of privacy if the camera

records the same view of the property as could be had by passersby on a public road.

       {¶ 13} The use of the pole camera here did not constitute an unreasonable search.

The camera recorded the same view of the Detrick-Jordan Pike property as could be had

by passersby on Detrick-Jordan Pike, a public road. The camera sat atop a utility pole

just off the property, on neighboring property, next to Detrick-Jordan Pike. The camera
                                                                                          -7-


could zoom in and out, tilt up and down, and rotate almost 360 degrees. The brightness

could be controlled, but the camera did not have “night vision.” The evidence shows that

no fence, bushes, or other object obstructed the view of the property from the road.

       {¶ 14} Rigel says that the vantage point atop a utility pole is dramatically different

than that of a passerby driving down the road. We agree with the trial court that the

difference is not as dramatic as Rigel seems to think. There is no evidence that the

camera’s elevated view gave it a better view. No privacy barrier, like hedges or a fence,

blocked a passerby’s view. So the camera’s elevated vantage point was immaterial. Rigel

also says that the camera could see inside the house. Rigel is correct that if the front door

were open, the camera could see inside the house. But so could a passerby.

       {¶ 15} Nor did the length of the period of monitoring here make the use of the pole

camera constitutionally unreasonable. We also agree with Houston’s holding that “the

long length of time of the surveillance does not render the video recordings

unconstitutionally unreasonable.” Houston, 813 F.3d 282, at 289. The length of a

monitoring period alone does not render video recordings unconstitutionally

unreasonable if it is possible for law enforcement to have engaged in live surveillance of

the property for the length of the period of monitoring. Id. And even if law enforcement

could not have conducted in-person surveillance for the whole period, said the court, the

length of the use of the camera is not a problem if any member of the public driving on

the roads bordering the property during the period of monitoring could have observed the

same views captured by the camera. Id. As the court put it, “long-term warrantless

surveillance via a stationary pole camera does not violate a defendant’s Fourth
                                                                                       -8-


Amendment rights when it was possible for any member of the public to have observed

the defendant’s activities during the surveillance period.” Id. at 290.

       {¶ 16} Here, the camera was installed on March 27, 2015, and actively monitored

until August 12. So active surveillance of the Detrick-Jordan Pike property lasted 138

days. As we said, no fence, bushes, or other object obstructed the view of the property

from the road. During the active surveillance period, then, any passerby on Detrick-Jordan

Pike road looking at the property would have seen the same thing that the camera saw.

       {¶ 17} The second assignment of error is overruled.

                C. The extensions of time to use the GPS tracking device

       {¶ 18} The third assignment of error alleges that the trial court erred by not

sustaining Rigel’s motion to suppress the evidence obtained and derived from the GPS

tracking device attached to his van. Rigel contends that the issuing court should not have

granted the State’s motions to extend the time to use the tracking device because the

warrant precludes extensions of time, the State’s motions were not supported by

additional affidavits, and the State failed to show good cause to extend the time. We find

no reversible error in any of these contentions.

       {¶ 19} Crim.R. 41 governs the issuance of tracking-device warrants and

extensions of time. The rule pertinently provides:

       If the judge is satisfied that probable cause exists, the judge shall issue a

       warrant identifying the property to be seized and naming or describing * * *

       the person or property to be tracked. * * * A tracking device warrant * * *

       shall specify the time that the device may be used, not to exceed 45

       days. The court may, for good cause shown, grant one or more extensions
                                                                                          -9-


       of time that the device may be used, for a reasonable period not to exceed

       45 days each.

Crim.R. 41(C)(2). Here, the warrant authorized the use of the tracking device for 45 days.

On the State’s motions, the trial court granted two successive 45-day extensions. Neither

motion for an extension was accompanied by an affidavit.

       {¶ 20} Rigel contends that the GPS tracking-device warrant could not be extended

under Crim.R. 41, because the warrant itself precludes extensions. The warrant states

that the tracking device must be removed from Rigel’s van no later than 45 days after the

issue date “unless extensions of time are granted upon issuance of another warrant.”

Seizing on “issuance of another warrant,” Rigel says that the State had to apply for a

whole new tracking-device warrant. But the warrant also refers to “extensions of time.”

The issuing judge evidently did not think that the language in the warrant cited by Rigel

precluded extensions—the judge granted two of them. Given that extensions of time are

permitted by Crim.R. 41, we defer to the issuing judge’s interpretation of the warrant.

       {¶ 21} Rigel next contends that a motion to extend the time that a tracking device

can be used must be supported by another affidavit. As the trial court pointed out, Crim.R.

41 does not say that an extension must be supported by an affidavit, saying only that a

court may grant an extension “for good cause shown.” Rigel fails to convince us that a

judicially-imposed affidavit requirement is required.

       {¶ 22} Lastly, Rigel contends that the State failed to show good cause to extend

the time to use the GPS tracking device. In its first motion for an extension, the State

explained why the extension was needed:
                                                                                          -10-


             As this investigation has progressed, the Clark County Sheriff’s

      Office has continued its investigation into the Rigel marijuana growing and

      trafficking operation in Clark County, Ohio. Detectives have obtained

      numerous electric records, conducted thermal imaging searches, and

      continue to conduct surveillance on the co-conspirators in this organization.

      Additional time is required to continue to track the location of Nicholas Rigel

      so as to determine additional marijuana growing, storage, and trafficking

      locations. Therefore extending this order for 45 days will enable them to do

      so. Detectives have also continued to observe Rigel engaging in activity

      consistent with illegal narcotics trafficking, and there is no indication that he

      will cease his illegal drug trafficking activity anytime in the near future.

We believe that the ongoing nature of the investigation in this case was sufficient to

establish “good cause” to grant an extension.

      {¶ 23} As a final matter, we note that even if the trial court did err by granting the

extensions, we would overrule this assignment of error because Rigel fails to show

prejudice. Rigel cites no evidence that suggests any GPS data of significance was

collected during the extensions. We can find in the record references to GPS data in only

two places—the affidavit supporting the warrant to search the Detrick-Jordan Pike, Villa

Road, and Mayhill Drive properties and in the affidavit supporting the warrant to search

the Hillside Avenue property. Both warrants state the same two facts, that GPS data

showed that “on multiple occasions” Rigel traveled from his home to the Detrick-Jordan

Pike or Villa Road property, and that on August 7, 2015, he traveled from his home to the

Detrick-Jordan Pike property. Rigel’s August 7, 2015 appearance at the Detrick-Jordan
                                                                                           -11-


Pike property was also evident from the pole camera at that location which recorded him

carrying 15 gallons of water into the house, making the August 7, 2015 GPS travel data

superfluous. Moreover, we conclude from our probable-cause reviews of the two

referenced affidavits in later assignments of error, that even absent the “multiple

occasions” when Rigel traveled to his properties reflected in the GPS data, the affidavits

state more than enough other facts to justify issuing the search warrants.

       {¶ 24} The third assignment of error is overruled.

               D. Probable cause to issue the GPS tracking device warrant

       {¶ 25} The fourth assignment of error also alleges that the trial court erred by not

sustaining Rigel’s motion to suppress the evidence obtained and derived from the GPS

tracking device. Rigel argues in this assignment of error that the affidavit supporting the

warrant does not provide a substantial basis for concluding that probable cause exists.

       {¶ 26} A search warrant may only be issued upon probable cause, usually

supported by an affidavit, that contraband or evidence of a crime will be found. See State

v. Jones, 143 Ohio St.3d 266, 2015-Ohio-483, 37 N.E.3d 123, ¶ 11. 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 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, 544 N.E.2d 640 (1989), paragraph one of the

syllabus, quoting Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d

527 (1983).
                                                                                       -12-


      {¶ 27} “When reviewing the sufficiency of probable cause for the issuance of a

search warrant, an appellate court should not substitute its judgment for that of the

magistrate by conducting a de novo determination of sufficiency.” State v. Norris, 2016-

Ohio-5729, 76 N.E.3d 405, ¶ 19 (2d Dist.), citing George at paragraph two of the syllabus.

Instead, “the duty of a reviewing court is simply to ensure that the magistrate had a

substantial basis for concluding that probable cause existed,” and it “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. Here, the affidavit supporting the application for the GPS

tracking device warrant provides a substantial basis for concluding that probable cause

existed.

      {¶ 28} The affidavit states that the Clark County Sheriff’s Office had been

investigating a suspected marijuana growing operation being operated by Rigel and his

brother. In October 2014, a confidential informant told law enforcement that he could buy

marijuana from a man named Jacob Collins who lived at 310 Villa Road in Springfield.

The informant said that the Villa Road residence contained an indoor marijuana growing

operation in the basement that is run by Rigel’s brother. In October, the informant made

two separate, controlled purchases of marijuana from Collins at the Villa Road property.

County property records showed that the Villa Road property was owned by Herold

Property Management, LLC, which is owned by Rigel and his wife. The confidential

informant told law enforcement that Collins had previously lived at 4303 Detrick-Jordan

Pike in Springfield. According to property records, that property also was owned by Herold

Property Management. Indeed, the property records showed that Herold Property
                                                                                           -13-


Management owned several residential properties in the area, including Rigel’s residence

at 709 Mayhill Drive. The affidavit states that the electric-service accounts for the Detrick-

Jordan Pike, Villa Road, and Mayhill Drive properties were in Rigel’s name. And the

electric bills for these properties were all mailed to the Villa Road property. The affidavit

states that electricity-usage records were obtained for several properties and that the

usage at the Detrick-Jordan Pike and Villa Road properties was “extremely high.” Based

on this information and his training and experience, Detective Reynolds avers his belief

that Rigel was operating marijuana-growing operations at the properties. The affidavit

states that the target van was usually parked at Rigel’s Mayhill Drive residence. “For the

last 2 weeks,” Reynolds avers, “Nicholas Rigel has been observed predominantly driving

the Chevy Venture, especially in the evening when he has been observed going to and

from the suspected grow locations.” The GPS tracking device, the affidavit states, is

needed to help find other marijuana grow locations, where Rigel was storing the

harvested marijuana, where he was selling it, and where he was storing the proceeds

from sales.

       {¶ 29} After reviewing the affidavit, we agree that it is sufficient to give the issuing

judge a substantial basis to conclude there was a fair probability that GPS tracking data

of Rigel’s van would lead to the discovery of contraband or evidence of marijuana

production or sale.

       {¶ 30} Rigel objects that the affidavit presents only hearsay allegations from the

confidential informant and that the affidavit does not establish the informant’s credibility.

He says that the affidavit does not supply even minimal information about the informant
                                                                                         -14-


and does not even assert that the informant is reliable. Where a confidential informant is

the source of hearsay in an affidavit, we have said that

       “the ‘informant’s veracity, reliability and basis of knowledge are all highly

       relevant’   in   a   totality   of   the   circumstances   probable    cause

       determination. [Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76

       L.Ed.2d 527 (1983)] (internal quotations omitted). There must be some

       basis in the affidavit to indicate the informant’s credibility, honesty or

       reliability. An affidavit which contains detailed information from informants

       (permitting an inference that illegal activity was personally observed by the

       informants), police corroboration of an informant’s intelligence through its

       own independent investigation, or additional testimony by the affiant helps

       to bolster and substantiate the facts contained within the affidavit. While

       individual facts and statements themselves may not separately support a

       probable cause determination; a reviewing court must weigh all of the

       components together because ‘[p]robable cause is the sum total of [all]

       layers of information.’ ”

(Citations omitted.) State v. Mitchell, 2d Dist. Montgomery No. 25402, 2013-Ohio-622, ¶

20, quoting State v. Harry, 12th Dist. Butler No. CA2008-01-0013, 2008-Ohio-6380, ¶ 20.

See also Crim.R. 41(C)(2) (stating that “[t]he finding of probable cause may be based

upon hearsay in whole or in part, provided there is a substantial basis for believing the

source of the hearsay to be credible and for believing that there is a factual basis for the

information furnished”). The trial court found the informant truthful and reliable, based on
                                                                                         -15-


the success of the controlled marijuana buys. We see little reason to reject the court’s

credibility finding.

       {¶ 31} Rigel also objects that the affidavit fails to establish a nexus between him

and the alleged criminal activity of his brother and Jacob Collins. Rigel says that the

affidavit contains no personal or first-hand knowledge of criminal activity committed by

him. But Rigel owned the properties where police believed marijuana was being grown.

The electricity bills showing unusually high usage were in his name. And he regularly

visited the suspected properties. These facts are sufficient to justify a tracking-device

warrant for his vehicle.

       {¶ 32} The fourth assignment of error is overruled.

                  E. Probable cause to issue the thermal-imaging warrant

       {¶ 33} The fifth assignment of error alleges that the trial court erred by not

sustaining Rigel’s motion to suppress the evidence obtained and derived from the

thermal-imaging of the Detrick-Jordan Pike property. Rigel contends that the affidavit

supporting the thermal-imaging warrant does not provide a substantial basis for finding

probable cause.

       {¶ 34} Detective Reynolds applied for a warrant authorizing law enforcement to

conduct a thermal-imaging scan of the houses on several properties, including the houses

on the Villa Road and Detrick-Jordan Pike properties. According to the supporting

affidavit, police sought evidence of “dissipating heat, surface temperature variables and

thermal image information which, when considered with other information developed in

this case, may constitute evidence of a crime concerning the Manufacturing, Possession,

or Delivery of * * * Marijuana.” Evidently, the scan of the Villa Road property did not yield
                                                                                          -16-


results consistent with indoor marijuana production. There is nothing in the record about

the scan of the Detrick-Jordan Pike property. Tellingly, the scan of that property is not

cited in the subsequent search-warrant affidavits. So even if a substantial basis to issue

the thermal-imaging warrant is lacking, Rigel fails to show that he was prejudiced.

       {¶ 35} But we also believe that the supporting affidavit provides a substantial basis.

The affidavit states that the Clark County Sheriff’s Office has been investigating a

suspected marijuana-growing operation run by Rigel and his brother. Then the affidavit

discusses the confidential informant who came forward in October 2014. The affidavit

provides the same information about the informant as that found in the GPS tracking-

device affidavit. The thermal-imaging affidavit adds that the informant has a “personal

relationship” with Jacob Collins, from whom the informant bought marijuana, and that the

informant had visited Collins at the Detrick-Jordan Pike property, when Collins lived there.

The affidavit reiterates that the Detrick-Jordan Pike property is owned by Herold Property

Management and that electricity-usage records for the property show “extremely high

Kilowatt (KWH) usage readings.” Reynolds avers that he “reviewed usage for other

residences of similar size to these for the same time periods in the same general area

and found the consumption for the listed addresses to be significantly higher than the

others.” And the affidavit notes that the electricity bills for the Detrick-Jordan Pike and

Villa Road properties were in Rigel’s name and were sent to the Villa Road property. We

agree with the trial court that this is enough to establish a substantial basis for concluding

that probable cause existed.

       {¶ 36} Rigel argues that the information in the thermal-imaging affidavit is stale.

He points out that the confidential informant’s controlled marijuana buys occurred in
                                                                                           -17-


October 2014 and that the electricity-usage records for the properties were from October

2013 through October 2014. Rigel says that by the time the thermal-imaging warrant was

requested roughly seven months later, in May 2015, the information as to marijuana being

grown at the properties was stale.

       {¶ 37} We conclude that staleness is not a problem here. As a general matter, “[a]n

affidavit in support of a search warrant must present timely information and include facts

so closely related to the time of issuing the warrant as to justify a finding of probable cause

at that time.” (Citations omitted.) State v. Marler, 2d Dist. Clark No. 2007 CA 8, 2009-

Ohio-2423, ¶ 37. But “[n]o arbitrary time limit dictates when information becomes ‘stale.’

The test is whether the alleged facts justify the conclusion that certain contraband remains

on the premises to be searched.” Id. “Evidence of ongoing criminal activity will generally

defeat a claim of staleness.” United States v. Greene, 250 F.3d 471, 481 (6th Cir.2001).

Here the affidavit shows that Rigel was engaged in an ongoing, marijuana-growing

operation at several locations.

       {¶ 38} Rigel fails to show that he was prejudiced by the thermal scans. And even

if he had, based on the information presented in the affidavit, the issuing judge had a

substantial basis for concluding that probable cause existed.

       {¶ 39} The fifth assignment of error is overruled.

             F. Probable cause to issue the Detrick-Jordan Pike, Villa Road,

                       and Mayhill Drive properties search warrant

       {¶ 40} The sixth assignment of error alleges that the trial court erred by not

sustaining Rigel’s motion to suppress the evidence obtained and derived from the search

of the Detrick-Jordan Pike, Villa Road, and Mayhill Drive properties. Rigel contends that
                                                                                          -18-


the affidavit supporting the search warrant does not provide a substantial basis for finding

probable cause.

       {¶ 41} The supporting affidavit states that information about the marijuana growing

operation came from two confidential sources and from the confidential informant whom

we have already discussed. According to the affidavit, the first confidential source told

police in 2010 that Rigel’s brother was engaging in a “weed franchise” arrangement with

tenants in some of the rental properties that he owned, which the source knew because

he had been a “franchisee.” The second confidential source similarly described in 2012

how Rigel’s brother was renting houses to people and then setting up marijuana growing

operations inside the houses. A tenant’s job, said the source, was to oversee the growing

operation while living in the house. Rigel’s brother would collect the finished product and

take all of the other evidence away to be destroyed. After he had sold the marijuana,

Rigel’s brother would pay the tenant a percentage based on the value of the growing

operation. The source knew all this, he said, because he had been one of those tenants.

As for the confidential informant, the affidavit recounts the same information that is in the

previous affidavits about the information that the informant provided in October 2014. This

affidavit adds that the informant had seen the indoor marijuana growing operation at the

Detrick-Jordan Pike property.

       {¶ 42} The affidavit then talks about Detective Reynolds’s findings in the county

property records and in electricity-usage records for Rigel’s properties. The information is

largely the same as the information in the previous affidavits. But this affidavit adds a

more detailed usage comparison between Rigel’s properties and comparable nearby

properties. The affidavit states that in May 2015, the pole camera at the Detrick-Jordan
                                                                                         -19-


Pike property captured Rigel carrying out of the house an exhaust fan that is commonly

used for indoor marijuana growing. The affidavit also cites GPS tracking data that shows

“on multiple occasions” that Rigel’s van travelled directly from his Mayhill Drive residence

to the Detrick-Jordan Pike property or the Villa Drive property. One such occasion is

singled out in the affidavit in which tracking data showed that Rigel drove from his

residence to the Detrick-Jordan Pike property and the pole camera at the property

showed him carry over 15 gallons of water into the house. Detective Reynolds avers that

he drove past the Detrick-Jordan Pike property and smelled “a strong odor of raw

Marijuana coming from the residence.”

       {¶ 43} We agree with the trial court that these facts provide a substantial basis for

finding probable cause to search the properties. As the court said, the affidavit blends

“hearsay and conjecture, with some factual observations and knowledge gained from

experience” to present “a picture of a large-scale operation involving Timothy Rigel and

Nicholas Rigel in the indoor growing of marijuana at several structures around Clark

County, Ohio.” Rigel regularly traveled from his home on Mayhill Drive to the Villa Road

and Detrick-Jordan Pike properties. The affidavit indicates that the confidential sources

and confidential informant were credible. That the electricity usage was higher at Rigel’s

properties than at comparable nearby properties over the same period of time

corroborates the confidential sources’ and informant’s statements that Rigel was growing

marijuana inside his properties. See State v. Thomas, 10th Dist. Franklin No. 12AP-928,

2014-Ohio-1489 (saying that informant’s information was corroborated by electricity-

usage records, cited in affidavit, showing that appellee’s residence had unusually high
                                                                                          -20-


usage compared to similar residences over the same period of time). As for Rigel’s Villa

Road residence, that it was his residence justified the search:

       “The justification for allowing a search of a person’s residence when that

       person is suspected of criminal activity is the commonsense realization that

       one tends to conceal fruits and instrumentalities of a crime in a place to

       which easy access may be had and in which privacy is nevertheless

       maintained. In normal situations, few places are more convenient than one’s

       residence for use in planning criminal activities and hiding fruits of a crime.”

United States v. Kapordelis, 569 F.3d 1291,1310 (11th Cir.2009), quoting United States

v. Green, 634 F.2d 222, 226 (5th Cir.1981); State v. Clayton, 8th Dist. Cuyahoga No.

102277, 2015-Ohio-4370, ¶ 18 (quoting the same). See also United States v. Williams,

544 F.3d 683, 687(6th Cir.2008) (saying that “an issuing judge may infer that drug

traffickers use their homes to store drugs and otherwise further their drug trafficking”).

       {¶ 44} The sixth assignment of error is overruled.

             G. Probable cause to issue the Hillside Avenue search warrant

       {¶ 45} The seventh assignment of error alleges that the trial court erred by not

sustaining Rigel’s motion to suppress the evidence obtained and derived from the search

of the Hillside Avenue property. Rigel contends that the affidavit supporting the search

warrant does not provide a substantial basis for finding probable cause.

       {¶ 46} The supporting affidavit recounts the information gleaned from the two

confidential sources in 2010 and 2012 and from the confidential informant in 2014. It then

reiterates the information presented in the affidavit for the search of the Detrick-Jordan

Pike, Villa Road, and Mayhill Drive properties about the county property records, the
                                                                                         -21-


electricity-usage records, the GPS tracking data, the strong marijuana odor that Detective

Reynolds detected at the Detrick-Jordan Pike property, and that Rigel was seen carrying

over 15 gallons of water into the Detrick-Jordan Pike house. The affidavit then states that

a search warrant was executed at the Detrick-Jordan Pike, Villa Road, and Wheel Street

properties and that “sophisticated marijuana growing operations were located inside with

a large number of mature plants located at each location, and a large amount of already

harvested and drying marijuana was also located. In excess of at least 50 mature plants

were located at each site.”

       {¶ 47} The affidavit then cites a third confidential source who, on August 12, 2015,

told law enforcement that he too participated in Rigel’s marijuana-growing operation. This

confidential source provided a description of the operation that matches the descriptions

provided by the other confidential sources. According to this source, Rigel was also

growing marijuana at 1811 Hillside Avenue in Springfield. Detective Reynolds avers that

he “had previously received information about a possible grow operation at 1811 Hillside

Ave. from another source several months prior as well.” A lieutenant with the Clark County

Sheriff’s Office went to the Hillside Avenue property, states the affidavit, and noticed that

all of the house’s windows appeared covered—just like all the other growing locations

that had been discovered. According to the affidavit, the lieutenant could smell raw

marijuana coming from the Hillside Avenue house.

       {¶ 48} We agree with the trial court that this affidavit provides more than enough

information to give a substantial basis for finding probable cause. The third confidential

source’s information is amply corroborated, so we accept the trial court’s credibility

finding.
                                                                                       -22-


       {¶ 49} As a final matter, the State contends that Rigel does not have standing to

challenge the search of the Hillside Avenue property. The State raised this standing issue

at the suppression hearing, but the trial court did not address it in the suppression

decision. Because we have concluded that the search warrant is valid, we need not

address this standing issue for the first time on appeal. Even if Rigel does not have

standing, the outcome is the same.

       {¶ 50} The seventh assignment of error is overruled.

                                      III. Conclusion

       {¶ 51} We have overruled each of the seven assignments of error presented. The

trial court’s judgment is affirmed.

                                      .............



FROELICH, J. and WELBAUM, J., concur.



Copies mailed to:

Andrew Pickering
Charles Koenig
Todd Long
Hon. Douglas M. Rastatter
