[Cite as State v. Elliott, 2013-Ohio-5753.]


                                         COURT OF APPEALS
                                    TUSCARAWAS COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT




STATE OF OHIO,                                   :    JUDGES:
                                                 :    Hon. W. Scott Gwin, P.J.
                           Plaintiff-Appellee    :    Hon. Sheila G. Farmer, J.
                                                 :    Hon. John W. Wise, J.
vs.                                              :
                                                 :    Case Nos. 2013 AP 07 0028
LEROY ELLIOTT, III                               :
                                                 :
                           Defendant-Appellant   :    OPINION




CHARACTER OF PROCEEDING:                         Appeal from the Court of Common Pleas,
                                                 Case No. 2012 CR 10 0258


JUDGMENT:                                        Affirmed



DATE OF JUDGMENT ENTRY:                          December 23, 2013



APPEARANCES:

For Plaintiff-Appellee                           For Defendant-Appellant

RYAN STYER                                       DEREK LOWRY
PROSECUTING ATTORNEY                             116 Cleveland Avenue NW
MICHAEL J. ERNEST                                Suite 800
ASSISTANT PROSECUTOR
125 East High Avenue
New Philadelphia, Ohio 44663
[Cite as State v. Elliott, 2013-Ohio-5753.]


Wise, J.

         {¶1}     Appellant Leroy Elliott, III, appeals the trial court’s denial of his motion to

suppress.

         {¶2}     Appellee is the State of Ohio.

                                  STATEMENT OF THE FACTS AND CASE

         {¶3}     On July 23, 2012, officers received a phone call from a Melvin McVey

stating that he was an employee of Frontier Propane, a propane company which

services Appellant's property. (T. at 2-3; Affidavit for Search Warrant). Mr. McVey

alleged that he was at Appellant’s home investigating a gas leak a week prior to his call.

(T. at 3). Mr. McVey reported to the police that while he was in the basement, he saw a

room with powerful lights and he smelled marijuana. (T. at 4). Mr. McVey expressed

concern that the marijuana would enter his system and cause him to fail his next

random drug screen required by his employer. (T. at 4).

         {¶4}     On July 24, 2012, Det. Jeff Moore with the Tuscarawas County Sheriff's

Detective filed an Affidavit for a search warrant for Appellant's residence. The Affidavit

of Det. Moore provided that he was notified by Melvin McVey of a possible grow

operation at Appellant's residence at 7562 Elliott Road SW, Newcomerstown, Ohio. In

this Affidavit, Det. Moore indicated that McVey informed him that he is an employee of

Frontier Propane, where he worked for the past nine years. According to the Moore

Affidavit, McVey was at Appellant's home to carryout work on behalf of Frontier

Propane. Mr. McVey indicated that he entered Appellant's home after detecting a gas

leak at the residence. According to the Moore Affidavit, McVey observed very bright

lights coming from a room located within the basement of the Elliott home. McVey also
went on to tell Det. Moore that he smelled what he believed to be a strong odor of

marijuana. McVey further indicated that he was familiar with the smell of marijuana, and

he believed that he had witnessed a grow operation for the purposes of growing

marijuana.

      {¶5}   The same day, the court took testimony from the affiant Detective and

issued the requested warrant.

      {¶6}   The Affidavit also stated that it was believed that Appellant's home

contained evidence such as marijuana cultivation paraphernalia, marijuana plants,

potting soil, fertilizer, grow lights, and other materials used for cultivation along with

cash, firearms and other controlled substances used in violation of R.C. §2925.04,

Cultivation of Marijuana; and R.C. §2925.14, Drug Paraphernalia.

      {¶7}   On July 24, 2012, officers obtained a search warrant and forced entry into

Appellant's home where they discovered a marijuana growing operation. Following the

execution of the search warrant, an inventory was returned for the search of Appellant's

home at 7562 Elliott Road SW, Newcomerstown, Ohio.

      {¶8}   On October 1, 2012, as a result of the above search, Appellant was

indicted by the Tuscarawas County Grand Jury for one count of Illegal Cultivation of

Marijuana    and   one   count   of   Possession    of   Drugs,   in   violation   of   R.C.

§2925.11(A)(C)(3)(d) and R.C. §2925.04(A)(C)(5)(d).

      {¶9}   On November 19, 2012, Appellant filed a Motion to Suppress the evidence

obtained in the execution of the search warrant. The case was assigned to the same

Judge who issued the search warrant.
       {¶10} On December 10, 2012, the Judge recused herself and the case was

assigned to the other Common Pleas Judge.

       {¶11} On January 25, 2013, a hearing was held regarding the Motion to

Suppress.

       {¶12} On February 22, 2013, the trial court filed an Entry overruling the Motion to

Suppress. In its Entry, the trial court found “that sufficient, legal probable cause to issue

the Warrant was lacking” but that “the law enforcement officials who executed the

Warrant reasonably relied upon the sufficiency of the probable cause evidence

supporting the issuance of the Search Warrant.”

       {¶13} On May 7, 2013, Appellant entered a plea of no contest. Appellant was

sentenced on June 18, 2013.

       {¶14} Appellant now appeals, assigning the following error for review:

                                   ASSIGNMENT OF ERROR

       {¶15} “I. THE TRIAL COURT ERRED IN NOT GRANTING THE APPELLANT'S

MOTION TO SUPPRESS THE EVIDENCE RECOVERED DURING THE EXECUTION

OF A SEARCH WARRANT WHICH WAS ISSUED ON INSUFFICIENT PROBABLE

CAUSE.”

                                                 I.

       {¶16} In his sole Assignment of Error, Appellant claims the trial court erred in

denying his motion to suppress the search warrant as the affidavit for the warrant was

insufficient to establish probable cause. We disagree.

       {¶17} 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 findings of fact. In
reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio

St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v. Guysinger,

86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the trial court

failed to apply the appropriate test or correct law to the findings of fact. In that case, an

appellate court can reverse the trial court for committing an error of law. State v.

Williams, 86 Ohio App.3d 37 (4th Dist.1993). Finally, assuming the trial court's findings

of fact are not against the manifest weight of the evidence and it has properly identified

the law to be applied, an appellant may argue the trial court has incorrectly decided the

ultimate or final issue raised in the motion to suppress. When reviewing this 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 any given

case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85 Ohio

App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held in

Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), “... as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de

novo on appeal.”

       {¶18} Here, an affidavit was filed with the application for the search warrant to

search appellant's residence. At the conclusion of the suppression hearing in this

matter, the trial court found that probable cause to issue the warrant was lacking but

that the officers who executed the warrant “reasonably relied upon the sufficiency of the

probable cause evidence:
       {¶19} “FINDS that upon review of the evidence relating to the issuance of the

Search Warrant in these cases, the undersigned concludes, in his judicial opinion, that

sufficient, legal probable cause to issue the Warrant was lacking. Notwithstanding this

opinion, the law enforcement officials who executed the Warrant reasonably relied upon

the sufficiency of the probable cause evidence supporting the issuance of the Search

Warrant and, consequently, its ultimate legality. The undersigned concludes that

deficiency of sufficient probable cause to issue the Warrant in these cases was not, as a

matter of law, so obvious to the executing officers that they lacked any objective basis

to believe the issuing Judge acted on sufficient probable cause.” (February 22, 2013

Judgment Entry).

       {¶20} It is well-established that evidence obtained by a law enforcement officer

acting in objectively reasonable reliance on a search warrant issued by a detached and

neutral judge that is ultimately found to be invalid will not be barred by the application of

the exclusionary rule.

       {¶21} In United States v. Leon, 468 U.S. 897 (1984), the United States Supreme

Court crafted a narrow exception to the exclusionary rule, stating that absent an

“allegation that the magistrate abandoned his detached and neutral role, suppression is

appropriate only if the officers were dishonest or reckless in preparing their affidavit or

could not have harbored an objectively reasonable belief in the existence of probable

cause.” Id. at 926.

       {¶22} The Ohio Supreme Court adopted the good faith exception set forth in

Leon, supra, in State v. Wilmoth, 22 Ohio St.3d 251, 490 N.E.2d 1236 (1986), syllabus:
       {¶23} “1. The exclusionary rule should not be applied to suppress evidence

obtained by police officers acting in objectively reasonable, good faith reliance on a

search warrant issued by a detached and neutral magistrate but ultimately found to be

invalid. (United States v. Leon [1984], 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677,

followed.)

       {¶24} “2. Where the officer's conduct in the course of a search and seizure is

objectively reasonable and executed in good faith, excluding the evidence because the

search warrant is found to be constitutionally invalid will not further the ends of the

exclusionary rule in any appreciable way.”

       {¶25} However, the good-faith exception to the exclusionary rule does not apply

where the officer's reliance on the warrant was not objectively reasonable.

“[S]uppression remains an appropriate remedy where: (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 particularize the place to be searched or the things to be seized-that the

executing officers cannot reasonably presume it to be valid.’ ” State v. George, 45 Ohio

St.3d 325, 331 (1989), quoting Leon at 923.

       {¶26} In the instant case, the detective properly requested a determination by a

judge on the issue of whether probable cause existed to execute the search. The good
faith of the officer(s) is also objectively reasonable because the content of the affidavit

was not so lacking in indicia of probable cause as to render belief in its existence

entirely unreasonable. A reasonably well-trained officer would not have known that the

search was illegal despite the judge’s authorization. The warrant was based on an

affidavit which relied upon information provided by an indentified individual purporting to

have first-hand knowledge of possible criminal activity occurring at the residence

belonging to Appellant. Further, even if the warrant was invalid, as found by the trial

court below, the error in issuing the warrant would be attributable to the judge, not the

officers.

       {¶27} Based on the foregoing, we do not find that the search warrant to have

been lacking in indicia of probable cause as to render official belief in its existence

entirely unreasonable or so facially deficient that the executing officers could not

reasonably presume it to be valid.

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

       {¶29} For the foregoing reasons, the decision of the Court of Common Pleas,

Tuscarawas County, Ohio, is affirmed.




By: Wise, J.

Gwin, P.J and

Farmer, J. concur.

                                             __________________________________
                                             HON. JOHN W. WISE
             _________________________________
             HON. W. SCOTT GWIN


             _________________________________
             HON. SHEILA G. FARMER

JWW/d 1211
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
                     FIFTH APPELLATE DISTRICT




STATE OF OHIO
                                            :
                       Plaintiff-Appellee   :
                                            :
-vs-                                        :       JUDGMENT ENTRY
                                            :
LEROY ELLIOTT, III                          :
                                            :
                    Defendant-Appellant     :       CASE NO. 2013 AP 07 0028




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

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

Costs assessed to appellant.




                                                _________________________________
                                                HON. JOHN W. WISE


                                                _________________________________
                                                HON. W. SCOTT GWIN


                                                _________________________________
                                                HON. SHEILA G. FARMER
