[Cite as State v. Norman, 2011-Ohio-568.]


                                       COURT OF APPEALS
                                   GUERNSEY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. John W. Wise, J.
                         Plaintiff-Appellee   :       Hon. Patricia A. Delaney, J.
                                              :
-vs-                                          :
                                              :       Case No. 2010-CA-21
PHILLIP NORMAN                                :
                                              :
                    Defendant-Appellant       :
                                              :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Cambridge
                                                  Municipal Court, Case Nos. 09CRB01022
                                                  and 09CRB01030

JUDGMENT:                                         Affirmed



DATE OF JUDGMENT ENTRY:                           February 8, 2011

APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

WILLIAM FERGUSON                                  LINDSEY K. DONEHUE
150 Highland Avenue                               1009 Steubenville Avenue
Cambridge, OH 43725                               Cambridge, OH 43725
[Cite as State v. Norman, 2011-Ohio-568.]


Gwin, P.J.

         {¶1} Defendant-appellant Phillip Norman appeals the Judgment of the

 Cambridge Municipal Court finding him guilty of one count of Possession of Marijuana

 (less than 100 grams) and one count of Possession of Drug Paraphernalia. Plaintiff-

 appellee is the State of Ohio.

                                STATEMENT OF THE CASE AND FACTS

         {¶2} On July 21, 2009, Guernsey County Narcotics Investigator Sam Williams

 sought and received a search warrant that was signed by Acting Judge William M.

 Bennett. In support of the request for the search warrant, Detective Williams executed

 an affidavit. The affidavit was attached and incorporated as Exhibit "A" into the search

 warrant. The request for a warrant was granted by Judge Bennett.

         {¶3}   In the affidavit, Detective Williams set for the following information that

 was relied upon by Judge Bennett in issuing the warrant:

         {¶4}   1). the affiant is a narcotics investigator for the Guernsey County Sheriff's

 Department;

         {¶5}   2). the affiant had received complaints of possible drug activity at 313

 South 2nd Street, Byesville, Ohio;

         {¶6}   3). the complaint included license plate numbers and vehicle descriptions;

         {¶7}   4). the complaint indicated that multiple vehicles would regularly pull up to

 the rear entrance to the home and stayed not more than ten (10) minutes;

         {¶8}   5). the affiant received complaints from individuals having observed

 money and drugs change hands between appellant and other individuals in the back

 yard;
Guernsey County, Case No. 2010-CA-21                                                     3


       {¶9}   6). the affiant conducted surveillance of the residence and personally

observed individuals who had been convicted of drug related crimes at the residence.

The affiant specified names of these individuals in the affidavit;

       {¶10} 7). the affiant indicated that appellant has a lengthy history of illegal drug

activity;

       {¶11} 8). a confidential informant who was scheduled to make a controlled drug

buy at the residence had contacted the affiant;

       {¶12} 9). the informant was being sent into the residence with marked money

with the intention of purchasing marijuana;

       {¶13} In addition, Detective Williams worked for several years as a member of

the Byesville Police Department and had personal knowledge of appellant’s history of

drug abuse from his employment at that police department.

       {¶14} Detective Williams had used the informant in question on previous drug

buys. He had always been reliable and Detective Williams indicated that he had no

reason to doubt that the information being provided was accurate.

       {¶15} Detective Williams placed a recording device on the confidential informant,

gave him one hundred seventy-five ($175.00) dollars in marked drug-buy money, and

sent him to 313 South 2nd Street, Byesville, Ohio.

       {¶16} The informant returned from the residence and presented Detective

Williams with a clear plastic baggie that appeared to contain crack cocaine.          The

informant told Detective Williams that the material contained in the baggie was crack

cocaine. Detective Williams did not have a chemical kit available with him to test the

substance to confirm crack cocaine prior to entering the residence.
Guernsey County, Case No. 2010-CA-21                                                  4


         {¶17} Based upon the information obtained, deputies of the Guernsey County

Sheriff's Department executed the search warrant on the residence. As a result of the

execution of the warrant, a number of items consistent with illegal drug activity were

located, and those items included small amounts of marijuana, marijuana joints and

roaches, hemostats, rolling papers, prescription pill bottles with various names on the

bottles various prescription pill bottles with labels removed, and various miscellaneous

pills.

         {¶18} During subsequent interrogation, appellant admitted that the marijuana

and some of the drug paraphernalia items belonged to him and admitted that several of

the pills were not prescribed to him and that several empty pill bottles that did not

belong to him were among the items located at the home.

         {¶19} Based upon the totality of the circumstances, appellant was charged with

possession of marijuana, possession of drug paraphernalia, and possession of

dangerous drugs.

         {¶20} Appellant filed a motion to suppress evidence based upon alleged

deficiencies in the search warrant.     On November 16, 2009, the trial court held a

hearing on the Motion to Suppress.       Detective Williams was the only witness that

testified.

         {¶21} At the hearing, Detective Williams testified that when the informant

returned to him he did not listen to the tape recorder before executing the warrant. He

also stated that when the officers finally listened to the tape the recorder turned off

after approximately five seconds of recording and there were no details of the alleged

transaction. Detective Williams also testified that the informant brought him a plastic
Guernsey County, Case No. 2010-CA-21                                                   5


baggy containing a substance that resembled the drug crack, but when it was tested it

was revealed to be soap. Detective Williams testified that even though he was familiar

with a NIK kit and generally had kits available for use, he did not test the substance

before executing the warrant.

      {¶22} Detective Williams also testified during the suppression hearing that he

relied upon appellant's CCH report to prepare the affidavit upon which the search

warrant was based. He attested that appellant has a "lengthy history of illegal drug

activity.” However, during examination Detective Williams admitted that in truth there

was only one drug related offense, which was a drug trafficking charge almost twenty-

five years ago in 1995.     Additionally, Detective Williams stated in his affidavit that

appellant was convicted of Having Weapons under Disability. However, appellant was

actually convicted of a first-degree misdemeanor charge of Improper Handling of

Weapons. Detective Williams admitted that according to the CCH report, appellant

does not have a "lengthy history of illegal drug activity.” During cross-examination

Detective Williams testified that it was his own personal knowledge that appellant had a

history of drug charges.

      {¶23} At the conclusion of the testimony, the trial court took the matter under

advisement. On February 24, 2010, the trial court denied appellant's motion to

suppress and set trial for April 5, 2010.

      {¶24} Trial commenced on April 5, 2010. Again, Detective Williams was the only

witness to testify. The trial court announced the verdict from the bench and found

appellant guilty of possession of marijuana and possession of drug paraphernalia, but

not guilty of possession of dangerous drugs. On the possession of drug paraphernalia
Guernsey County, Case No. 2010-CA-21                                                 6


conviction, the trial court sentenced appellant to serve 30 days in the county jail and

suspended appellant's driver's license for 12 months. On the possession of marijuana

conviction, the trial court sentenced appellant to pay a fine in the sum of $150.00.

Appellant's trial counsel moved to stay the execution of sentence pending this appeal

and the motion was granted.

     {¶25} On April 20, 2010, appellate Counsel Andrew Warhola filed a timely Notice

of Appeal, Docketing Statement, and Request for the transcript of the trial to be

prepared at the State's expense. On July 16, 2010, the trial court Granted Attorney

Warhola's Motion to Withdraw and appointed Attorney Lindsey K. Donehue to continue

the Appeal.

     {¶26} Appellant has timely appealed raising the following assignment of error for

our consideration.

     {¶27} “I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S

MOTION TO SUPPRESS THE EVIDENCE SEIZED AND OBTAINED FROM THE

INVALID SEARCH WARRANT BECAUSE THE SEARCH WARRANT WAS BASED

ON AN AFFIDAVIT THAT WAS MADE WITH RECKLESS DISREGARD FOR THE

TRUTH AND THE SEARCH WARRANT SHOULD NOT HAVE BEEN EXECUTED

BECAUSE THE LIMITED CIRCUMSTANCES UNDER WHICH IT WAS GRANTED

DID NOT OCCUR.”

                                               I.

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

in denying his motion to suppress. We disagree.
Guernsey County, Case No. 2010-CA-21                                                7


      {¶29} 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-

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.

      {¶30} Appellant first argues that the trial court erred in denying his motion to

suppress evidenced because the search warrant was based on an affidavit that was

made with reckless disregard for the truth.
Guernsey County, Case No. 2010-CA-21                                                       8


      {¶31} In addressing the substance of defendant's assignment of error, we begin

with Crim.R. 41, which governs the issuance and execution of search warrants in Ohio.

Subsection (C) of the rule reads, in pertinent part:

      {¶32} “A warrant shall issue under this rule only on an affidavit or affidavits

sworn to before a judge of a court of record and establishing the grounds for issuing

the warrant.    The affidavit shall name or describe the person to be searched or

particularly describe the place to be searched, name or describe the property to be

searched for and seized, state substantially the offense in relation thereto, and state

the factual basis for the affiant's belief that such property is there located. If the judge

is satisfied that probable cause for the search exists, he shall issue a warrant

identifying the property and naming or describing the person or place to be searched.

The 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.”

      {¶33} 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 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 (1989), 45 Ohio St.3d 325, 330 544 N.E.2d 640, paragraph two of the

syllabus; Illinois v. Gates (1983), 462 U.S. 213, 238-239, 102 S.Ct. 2317, internal
Guernsey County, Case No. 2010-CA-21                                                    9


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 Illinois, 462 U.S. at 238-239.

      {¶34} Deference to the judge issuing a warrant, however, is not boundless. State

v. Birk, Fairfield App. No. 2007-CA-63, 2008-Ohio-5571 ¶27.         Notwithstanding the

reasonable reliance on a search warrant exception to Fourth Amendment exclusionary

rule, suppression is an appropriate remedy if the magistrate or judge in issuing a

warrant 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. United

States v. Leon (1984), 468 U.S. 897, 914, 104 S.Ct. 3405, 3416. Good faith is no

defense where the officer himself is the source of the challenged information. See,

United States v. Baxter (6th Cir. 1990), 889 F.2d 731.

      {¶35} “To successfully attack the veracity of a facially sufficient search warrant

affidavit, a defendant must show by a preponderance of the evidence that the affiant

made a false statement, either ‘intentionally, or with reckless disregard to the truth’.”

State v. Waddy (1992), 63 Ohio St.3d 424, 441, 588 N.E.2d 819 superseded by

Constitutional amendment on other grounds as recognized by State v. Smith (1997),

80 Ohio St.3d 89, 103, 684 N.E.2d 668.(Citing Frank v. Delaware (1978), 438 U.S.

154, 155-156, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667, 672). See also, State v. McKnight

(2005), 107 Ohio St.3d 101, 105, 2005-Ohio-6046 at ¶31, 837 N.E.2d 315, 329.

“‘Reckless disregard’ means that the affiant had serious doubts of an allegation's truth.”

Id. (Citation omitted). “Omissions count as false statements if ‘designed to mislead, or

* * * made in reckless disregard of whether they would mislead, the magistrate’.” State
Guernsey County, Case No. 2010-CA-21                                                      10

v. Waddy, supra. (Emphasis deleted in original) (Citation omitted). State v. Brown

(June 28, 2000), Tuscarawas App. No. 1999AP09005.

      {¶36} In Franks v. Delaware (1978), 438 U.S. 154, 98 S.Ct. 2674 the United

States Supreme Court held that when the accused proves by a preponderance of the

evidence that “a false statement knowingly and intentionally, or with reckless disregard

for the truth, was included by the affiant in the warrant affidavit, and [that] the allegedly

false statement is necessary to the finding of probable cause, the Fourth Amendment

requires that * * * the fruits of the search [must be] excluded to the same extent as if

probable cause was lacking on the face of the affidavit.” Id. at 155-156; see, also, State

v. Waddy, supra, 63 Ohio St.3d at 441, 588 N.E.2d 819.

      {¶37} “The burden of showing something by a preponderance of the evidence ...

simply requires the trier of fact to believe that the existence of a fact is more probable

than its nonexistence before [he] may find in favor of the party who has the burden to

persuade the [judge] of the fact's existence.” Concrete Pipe & Products of Cal., Inc. v.

Construction Laborers Pension Trust for Southern Cal.(1993), 508 U.S. 602, 622, 113

S.Ct. 2264, 2279, (1993) (internal quotation marks omitted).           In other words, the

preponderance standard goes to how convincing the evidence in favor of a fact must

be in comparison with the evidence against it before that fact may be found, but does

not determine what facts must be proven as a substantive part of a claim or defense.

Metropolitan Stevedore Co. v. Rambo (1997), 521 U.S. 121, 117 S.Ct. 195 at n. 3.

      {¶38} 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
Guernsey County, Case No. 2010-CA-21                                                   11


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 (1954), 161 Ohio St. 469, 477, 120 N.E.2d 118, 123. See

also, Rice v. City of Cleveland (1944), 144 Ohio St. 299, 58 N.E. 768. “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 (1989), 45 Ohio St.3d 325, paragraph one

of the syllabus, quoting Illinois v. Gates (1983), 462 U.S. 213, 238-39.

        {¶39} 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 at

paragraph three of the syllabus, citing United States v. Leon (1984), 468 U.S. 897.

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, citing Coolidge v. New Hampshire (1971), 403

U.S. 443, 466. See also Horton v. California (1990), 496 U.S. 128. Keeping in mind

the foregoing principles, we will begin by discussing the search conducted on July 21,

2009.
Guernsey County, Case No. 2010-CA-21                                                   12


      {¶40} Appellant first contends that Detective Williams acted with reckless

disregard for the truth when he stated in the search warrant affidavit that appellant "has

a lengthy history of illegal drug activity" even though the CCH reports only one, twenty-

five year old instance of drug activity in appellant's past.

      {¶41} Probable cause to search does not require proof that a crime was actually

committed, merely the fair probability that evidence of a crime will be found at the

location described.    State v. George (1989), 45 Ohio St.3d 325, 544 N.E.2d 640,

paragraph one of the syllabus.       In the case at bar, the facts in the affidavit fully

supported a finding of probable cause: Detective Williams had received complaints by

individuals who claimed to have observed money and drugs change hands on

numerous occasions at the home; some of those complaints contained license plate

numbers, and descriptions of vehicles and the occupants; Detective Williams

conducted surveillance at the residence and observed specific individuals who have

been convicted of drug related crimes at the home; appellant did have a prior felony

drug offense conviction. These facts did not constitute false and misleading statements

in violation of Franks v. Delaware, 438 U.S. at 170, 98 S.Ct. 2674, 57 L.Ed.2d 667.

      {¶42} Appellant’s argument centers upon Detective Williams’ use of the term

“lengthy” in his affidavit. [Appellant’s Brief at 15]. However, this Court need not decide

whether Detective Williams, intentionally or with a reckless disregard for the truth,

included the statement in his affidavits that appellant had “a lengthy history of illegal

drug activity.” Rather, this Court concludes that, setting that statement to one side, the

remaining content of the affidavits is sufficient to establish probable cause to search

the residence. United States v. Colquitt (SD OH April 27, 2010), 2010WL17269 at 6.
Guernsey County, Case No. 2010-CA-21                                                 13


The remaining content of the affidavit is sufficient to establish probable cause to

believe that evidence of drug activity would be found at the residence.

      {¶43} Appellant next argues that the search warrant should not have been

executed because the limited circumstances under which it was granted did not occur.

Specifically, appellant contends that the affidavit in support of the search warrant

provided that, in the event the informant does not return a recording of the drug

transaction as well as marijuana, then there would be no raid on appellant's home and

the search warrant would not be executed.

      {¶44} In the case at bar, Detective Williams testified he did not listen to the

recorder that the informant returned to him before executing the warrant. (Mot. T. at

13-14). He also stated that when the officers finally listened to the tape, the recorder

turned off after approximately five seconds of recording and there were no details of

the alleged drug transaction. (Id. at 14). Detective Williams also testified that the

informant brought him a plastic baggy containing a substance that resembled the drug

crack, but when it was tested revealed to be soap. (Id. at 14-15).

      {¶45} Evidence not specifically described in a warrant may be validly seized

under two theories: (1) based upon evidence known to the officers the articles seized

were closely related to the crime being investigated; (2) the officers had reasonable

cause to believe the items seized were instrumentalities of the crime. State v. Fields

(1971), 29 Ohio App.2d 154, 160-161, 58 O.O.2d 212, 215-216, 279 N.E.2d 616, 620-

621; State v. McGettrick(1988), 40 Ohio App.3d 25, 29, 531 N.E.2d 755, 760.

      {¶46} In the present case, the purchase of items believed to be illegal drugs

from a confidential informant who was expected to purchase marijuana does not
Guernsey County, Case No. 2010-CA-21                                                14

invalidate the issuance or the execution of the search warrant. In Mays v. City of

Dayton, the United States Court of Appeals for the Sixth Circuit Court observed,

“[a]ffidavits in support of search warrants ‘are normally drafted by non-lawyers in the

midst and haste of a criminal investigation.’ United States v. Ventresca, 380 U.S. 102,

108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). An affiant cannot be expected to

include in an affidavit every piece of information gathered in the course of an

investigation. United States v. Colkley, 899 F.2d 297, 302 (4th Cir.1990). Clearly an

affidavit should not be judged on formalities, as long as probable cause is evident.”

(1998), 134 F.2d 809, 815.

      {¶47} In the present case, the warrant authorized a search for “evidence of drug

trafficking…drugs, drugs paraphernalia [sic.]…and any other items used in drug

trafficking…”   The warrant did not limit the search to solely marijuana. The item

returned by the informant appeared to be crack cocaine and was related to the crime of

drug trafficking being investigated; additionally Detective Williams had reasonable

cause to believe the items seized was the instrumentality of the crime of drug

trafficking.

      {¶48} Based upon the above, we find the trial court properly overruled the

motion to suppress

      {¶49} Appellant’s sole assignment of error is overruled.
Guernsey County, Case No. 2010-CA-21                                      15


     {¶50} For the foregoing reasons, the judgment of the Cambridge Municipal

Court, Guernsey County, Ohio, is hereby affirmed.

By Gwin, P.J.,

Wise, J., and

Delaney, J., concurs

separately




                                          _________________________________
                                          HON. W. SCOTT GWIN

                                          _________________________________
                                          HON. JOHN W. WISE

                                          _________________________________
                                          HON. PATRICIA A. DELANEY
WSG:clw 1220
Guernsey County, Case No. 2010-CA-21                                                  16

Delaney, J., concurring

      {¶51} I concur with the majority’s opinion in the disposition of Appellant’s

assignment of error. I disagree with the majority’s opinion in ¶42, however, that we

need not consider whether Detective Williams’ statements in his affidavit were made

with reckless disregard for the truth. As a reviewing court, we must still consider these

statements and determine whether they were made with reckless disregard for the truth.

Assuming, arguendo, that the statements were made with such reckless disregard, I

would still find sufficient independent evidence to support the trial court’s decision to

deny Appellant’s Motion to Suppress.



                                         ______________________________
                                         JUDGE PATRICIA A. DELANEY
[Cite as State v. Norman, 2011-Ohio-568.]


             IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
PHILLIP NORMAN                                   :
                                                 :
                                                 :
                       Defendant-Appellant       :       CASE NO. 2010-CA-21



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

judgment of the Cambridge Municipal Court, Guernsey County, Ohio, is hereby

affirmed. Costs to appellant.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN

                                                     _________________________________
                                                     HON. JOHN W. WISE

                                                     _________________________________
                                                     HON. PATRICIA A. DELANEY
