[Cite as State v. Mooney, 2012-Ohio-852.]


                                       COURT OF APPEALS
                                     HOLMES COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 11 CA 8
SANDRA MOONEY

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. 10 CR 65


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                        February 23, 2012



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

CHRISTINE C. WILLIAMS                         DAVID M. HUNTER
ASSISTANT PROSECUTOR                          244 West Main Street
164 East Jackson Street                       Loudonville, Ohio 44842
Millersburg, Ohio 44654
Holmes County, Case No. 11 CA 8                                                          2

Wise, J.

          {¶1}   Defendant-Appellant Sandra Mooney appeals the decision of the Court of

Common Pleas, Holmes County, which overruled her motion to suppress evidence in a

case involving several drug-related offenses. The relevant facts leading to this appeal

are as follows.

          {¶2}   On November 12, 2009, Officer Zambounis of the Medway Drug

Enforcement Agency obtained a search warrant for Appellant Sandra Mooney’s

residence at 576-A South Washington Street, Millersburg. At that time, an additional

search warrant was obtained for the adjoining residence of Sue Mooney, appellant’s

daughter, at 576-B South Washington Street. Medway officers had been suspicious of

alleged drug activity involving appellant and/or her daughter since 2005. According to

the warrant request, a confidential informant had attempted to buy marihuana from

appellant in 2008 and was gifted a small quantity of the drug by appellant.

          {¶3}   The warrants directed law enforcement officers to search for the following

property:

          {¶4}   “Marihuana or any other controlled substance as defined in Revised Code

3719.41; drug devices, instruments, or paraphernalia used to administer or to prepare

for sale controlled substances; ledgers, computers, books or any other records relating

to the sale, preparation, cultivation, or possession of controlled substances; or United

States Currency relating to the sale or use of controlled substances; safes and weapons

* * *.”

          {¶5}   Medway officers proceeded to search 576-A and 576-B South Washington

on November 12, 2009. As a result of the search, appellant was charged with Child
Holmes County, Case No. 11 CA 8                                                       3


Endangering, a felony of the third degree; Cultivation of Marihuana, a fourth-degree

misdemeanor; Possession of Drug Paraphernalia, a fourth-degree misdemeanor; and

Possession of Marihuana, a minor misdemeanor.

      {¶6}   A preliminary hearing was conducted in the Holmes County Municipal

Court on August 11, 2010. Appellant was indicted on August 17, 2010. Appellant

thereafter filed a motion to suppress the evidence obtained as a result of the search of

her residence. A hearing on the motion was held in the Holmes County Court of

Common Pleas on October 5, 2010. After providing time for each side to present written

memoranda, the trial court overruled the motion to suppress.

      {¶7}   The matter proceeded to trial on May 5, 2011. After the jury was

impaneled, a plea arrangement was made whereby appellant pled to no contest to the

following: Child Endangering, R.C. 2919.22(A)(1), a first-degree misdemeanor;

Cultivation of Marihuana, R.C. 2925.04(A), a fourth-degree misdemeanor; Possession

of Drug Paraphernalia, R.C. 2925.14(C)(1), a fourth-degree misdemeanor;             and

Possession of Marihuana, R.C. 2925.04(A), a minor misdemeanor. Appellant was

sentenced, inter alia, to 180 days in jail, with 179 days suspended.

      {¶8}   On May 10, 2011, appellant filed a notice of appeal. She herein raises the

following Assignment of Error:

      {¶9}   “I.   THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S

MOTION TO SUPPRESS.”
Holmes County, Case No. 11 CA 8                                                        4


                                               I.

      {¶10} In her sole Assignment of Error, appellant contends the trial court erred in

overruling her motion to suppress the evidence obtained as a result of the search

warrant. We disagree.

      {¶11} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's finding of fact.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issue raised in the motion to suppress. When

reviewing this third type of claim, an appellate court must independently determine,

without deference to the trial court's conclusion, whether the facts meet the appropriate

legal standard in the given case. State v. Curry (1994), 95 Ohio App.3d 93, 96, 641

N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State

v. Guysinger (1993), 86 Ohio App.3d 592, 621 N .E.2d 726. As the United States

Supreme Court held in Ornelas v. U .S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663,

134 L.Ed.2d 911, “... as a general matter determinations of reasonable suspicion and

probable cause should be reviewed de novo on appeal.”

      {¶12} The Fourth Amendment to the United States Constitution and Section 14,

Article I, Ohio Constitution, prohibit the government from conducting unreasonable

searches and seizures of persons or their property. Terry v. Ohio (1968), 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d

1271. The United States Supreme Court has held that “ ‘[a]t the very core [of the Fourth

Amendment] stands the right of a man to retreat into his own home and there be free
Holmes County, Case No. 11 CA 8                                                         5

from unreasonable governmental intrusion.’ ” Payton v. New York (1980), 445 U.S. 573,

589-590, 100 S.Ct. 1371, 63 L.Ed.2d 639, quoting Silverman v. United States (1961),

365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734.

      {¶13} In reviewing the sufficiency of probable cause in an affidavit submitted in

support of a search warrant, our duty is to ensure that the magistrate or judge who

issued the warrant had a substantial basis for concluding that probable cause existed.

State v. George (1980), 45 Ohio St .3d 325, paragraph two of the syllabus. An appellate

court must not substitute its judgment for that of the magistrate or trial judge by

conducting a de novo determination as to whether sufficient probable cause existed

upon which to issue the search warrant. Id. A trial judge or magistrate, when issuing a

search warrant, must 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. Id. at paragraph one of the

syllabus, citing Illinois v. Gates (1983), 462 U.S. 213, 238-239. As a reviewing court, we

must accord great deference to the trial court's determination of probable cause.

George, at paragraph two of the syllabus. Doubtful or marginal cases should be

resolved in favor of upholding the warrant. Id. The United States Supreme Court has

held that the totality of the circumstances must be examined in determining whether

probable cause existed for a search warrant. Illinois v. Gates, supra. “Probable cause”

means only the probability and not a prima facie showing of criminal activity. George,

supra. See also Beck v. Ohio (1964), 379 U.S. 89.
Holmes County, Case No. 11 CA 8                                                        6


      {¶14} In the case sub judice, appellant notes that all of the trash pulls indicated

evidence of marihuana. Appellant’s Brief at 7. However, appellant maintains that all of

the trash pulls contained discarded mail belonging only to appellant’s daughter, Sue,

and that Officer Zambounis knew that Sue lived at 576-B, not at 576-A. She claims the

only evidence concerning marihuana in her residence, 576-A, was from intelligence

obtained by law enforcement in 2005 and 2008, the latter date being nearly a year and

one-half before the warrant. Thus, appellant contends, while probable cause may have

existed as to 576-B, the only information supporting a search of 576-A was effectively

“stale” and would not have supported the warrant.

      {¶15} The search warrant request affidavit prepared by Officer Zambounis states

that trash pulls were made on October 21, 2009; October 28, 2009; November 4, 2009;

and November 11, 2009. These resulted in marihuana residue, stems, and fresh

cuttings/trimmings. Zambounis also conducted an online phone directory search and

found both appellant and her daughter, Sue, were listed at 576 South Washington, with

no reference to or differentiation between apartments “A” and “B.” The phone directory

search also indicated that Michael Farnsworth, who has a 2003 drug conviction on his

record, was using the generic 576 South Washington address. Furthermore, some of

the mail to Sue utilized 576-A in the address, even though she resided at 576-B.

      {¶16} Upon review, affording due deference to the decision of the judge issuing

the search warrant (George, supra), we hold the trial court, in relying upon Officer

Zambounis’ affidavit, had a substantial basis for concluding that probable cause existed

to support the warrant’s issuance.
Holmes County, Case No. 11 CA 8                                                        7


      {¶17} Having found no reversible error as to the validity of the search warrant,

upon review we further hold the trial court did not err in denying the motion to suppress

under the facts and circumstances of this case.

      {¶18} Appellant’s sole Assignment of Error is overruled.

      {¶19} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Holmes County, Ohio, is hereby affirmed.


By: Wise, J.

Gwin, P. J., and

Hoffman, J., concur.



                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                 JUDGES
JWW/d 0214
Holmes County, Case No. 11 CA 8                                              8


            IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
SANDRA MOONEY                             :
                                          :
       Defendant-Appellant                :        Case No. 11 CA 8




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Holmes County, Ohio, is affirmed.

       Costs assessed to appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                            JUDGES
