[Cite as State v. Brown, 2017-Ohio-8315.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105202




                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                    JAMES N. BROWN
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-16-603155-A

        BEFORE: Stewart, J., Kilbane, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: October 26, 2017
ATTORNEY FOR APPELLANT

Mary Catherine Corrigan
4403 St. Clair Avenue
Cleveland, OH 44103


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

Kevin E. Bringman
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

      {¶1} Citing information supplied by an informant and drug-related items found in

a trash pull, the police obtained a warrant to search the house of defendant-appellant

James N. Brown. That search yielded evidence leading to Brown’s being charged with

counts of trafficking, drug possession, having a weapon while under disability, and

possession of criminal tools. Brown filed a motion to suppress the evidence seized in the

search on grounds that there was no probable cause to issue the search warrant. The

court denied the motion to suppress and Brown pleaded no contest to all counts. Brown

appealed, requesting that this appeal be placed on this court’s accelerated calendar

pursuant to App.R. 11.1 and Loc.App.R.11.1. By doing so, he has agreed that we may

render a decision in “brief and conclusionary form” consistent with App.R. 11.1(E).

      {¶2} The totality of the circumstances convince us that the court did not err by

finding that the issuing magistrate had probable cause to conclude that there was a fair

probability contraband or evidence of a crime would be found at Brown’s residence.

State v. Jones, 143 Ohio St.3d 266, 2015-Ohio-483, 37 N.E.3d 123, ¶ 13; Illinois v.

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

      {¶3} The affidavit filed in support of the application for the search warrant stated

that the affiant received information from a confidential informant with a previous record

of providing corroborated information. The informant stated that a person named “JB”

was selling marijuana out of a studio in the residence’s basement.            The affiant
determined that Brown, whose initials, age, and race matched those provided by the

informant, possibly lived at the address. Brown’s criminal background showed a history

of drug trafficking and drug possession. The affiant conducted two “trash pulls” at the

stated address and, on both occasions, found a number of plastic bag “tear offs” and burnt

marijuana cigarettes and marijuana “debris.” With respect to the plastic bag “tear offs,”

the affiant stated:

       [I]n his training and experience, marijuana and other narcotics are placed
       into the smaller sandwich style bags, and the drug trafficker tears and keeps
       the corner from the baggy containing the marijuana or narcotics, discarding
       the empty portion of the baggy into the trash. The smaller bags of marijuana
       or narcotics are now packaged for re-sale.

       {¶4} The court found the affidavit “remarkably vague” in some respects; for

example, that it did not assert that the person identified by the informant was selling drugs

from the residence — the affidavit stated that “JB” was selling drugs in the city in which

the residence was located. However, affidavits filed in support of warrant applications

should not be considered hypertechnically, but in a practical, “common sense” manner to

determine whether there is a fair probability that a search will uncover contraband or

evidence of a crime. See State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989),

paragraph one of the syllabus. The affiant learned from the informant that JB “had a

studio in his basement where people would sell and use marijuana as well.” With the

affidavit clearly stating that JB “lived at the residence” and sold drugs from there, a fair

reading of the affidavit linked Brown to the drug activity allegedly being conducted at the

residence.
       {¶5} We likewise find that evidence discovered in the two trash pulls supplied

probable cause to believe that a search of the premises would yield contraband or

evidence of a crime. The affiant stated that he found plastic bags with torn corners.

These indicated to the affiant that the bags were “indicative of individuals packaging

drugs for re-sale.”

       {¶6} Brown argues that the informant’s information went “stale” because the

police waited up to one month after receiving the tip to search the contents of his trash for

contraband or evidence of a crime. Probable cause must exist at the time the application

for a warrant is made.        State v. Shropshire, 8th Dist. Cuyahoga No. 103808,

2016-Ohio-7224, ¶ 25. There is no arbitrary time limit for when information offered to

support a search warrant application becomes stale; instead, the information becomes

stale “when enough time has elapsed such that there is no longer ‘sufficient basis to

believe * * * that the items to be seized are still on the premises.’” United States v. Lacy,

119 F.3d 742, 746 (9th Cir.1997), quoting United States v. Gann, 732 F.2d 714, 722 (9th

Cir.1984). Although the trash pulls may have come as much as one month after the

informant’s tip, the trash pulls themselves yielded evidence indicative of drug trafficking.

 The warrant application was made just one day after the second trash pull, so the

information used in support of the application was fresh.

       {¶7} Brown next argues that the court erred by refusing to rule on his motion to

require the state to reveal the identity of the confidential informant. When the trial court

fails to rule on a pretrial motion, we assume that the court overruled the motion. State ex
rel. Scott v. Streetsboro, 150 Ohio St.3d 1, 2016-Ohio-3308, 78 N.E.3d 809, ¶ 14.

Balancing Brown’s interests in his right to confront and cross-examine his accuser against

the public’s interest in protecting the flow of information regarding criminal activity to

the police, State v. Williams, 4 Ohio St.3d 74, 446 N.E.2d 779 (1983), syllabus, we find

no error. Brown had the burden of establishing the need for disclosure, but failed to state

a compelling reason why disclosure would be helpful. He argued that the search warrant

“was based on nothing other than the word of [a] Confidential Reliable Informant[,]” but

the warrant application contained evidence showing that the informant’s tip had been

verified to the satisfaction of the issuing magistrate with potential evidence of drug

trafficking culled from the trash pulls.

       {¶8} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________________
MELODY J. STEWART, JUDGE

MARY EILEEN KILBANE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
