         [Cite as State v. Patton, 2013-Ohio-3158.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NO. C-120718
                                                          TRIAL NO. B-1105144
        Plaintiff-Appellant,                          :

  vs.                                                 :      O P I N I O N.

RALPH PATTON,                                         :

    Defendant-Appellee.                               :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: July 19, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and James Michael
Keeling, Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Hal Arenstein, for Defendant-Appellee.




Please note: this case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS



FISCHER ,   Judge.

            {¶1}   Plaintiff-appellant the state of Ohio appeals the trial court’s

judgment suppressing evidence from inside the home of defendant-appellee Ralph

Patton following the execution of a search warrant. Because the affidavit supporting

the warrant provided sufficient probable cause to search the home and did not

include any observations made by the officer during an allegedly illegal protective

sweep of the home, we reverse the trial court’s judgment and remand this case for

further proceedings.

            {¶2}   Patton was indicted on single counts of illegal cultivation of

marijuana, possession of marijuana, and trafficking in marijuana. He subsequently

moved to suppress all the evidence that stemmed from the search of his home.

            {¶3}   At the hearing on the motion to suppress, police testified that they

had received an anonymous telephone call from one of Patton’s neighbors, informing

them that marijuana was being grown in the backyard of Patton’s home and that it

was visible from the street. The police went to the backyard without going onto the

premises. They drove down a service drive, where they could see stalks of marijuana

growing above a fence in the backyard. They could also smell an odor emanating

from the marijuana.

            {¶4}   They knocked on the front door of the home, but no one answered.

They then set up a perimeter around the house.           They held the house under

surveillance while one officer went to prepare an affidavit for a search warrant.

            {¶5}   While they were getting the search warrant, a vehicle pulled into

the rear of the house. A man exited from the vehicle and went into the house. The

police then went to the front door and rang the doorbell. A man answered the door.

Police patted the man down, placed him in handcuffs, and detained him for



                                           2
                       OHIO FIRST DISTRICT COURT OF APPEALS



questioning. During questioning, the man, later identified as Anthony Patton, said

he was there to pick up his nephew and take him to school the next day, and that

there was no one else in the home. The police then conducted a protective sweep of

the home to make sure that no one else was in the home.

           {¶6}     The state’s witnesses testified that three officers entered the home

to see if other persons were present in the home. When officers did not find anyone,

they came out of the home. During the protective sweep, one of the police officers

saw two bags of marijuana on top of a dryer in the basement of the home.

Defendant’s witness, Anthony Patton, testified that eight officers went in, were there

about 2o minutes, and then came out. The police then waited outside until they

secured a search warrant for the premises. When they subsequently searched the

home, the police seized the two bags of marijuana on the dryer in the basement.

           {¶7}     The trial court granted Patton’s motion to suppress the evidence

seized inside his home. The trial court found that the police officers’ protective

sweep of Patton’s home was not justified under Maryland v. Buie, 494 U.S. 325, 334,

110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). The court further held that because “law

enforcement [had] used information gained from the unlawful intrusion to support

the affidavit for a search warrant and the actual issuance of a search warrant,” the

warrant was not valid.

       {¶8}       In its sole assignment of error, the state argues that the trial court

erred in suppressing the evidence recovered during the search of the interior of

Patton’s home.

       {¶9}       We employ a two part analysis when reviewing a trial court’s ruling on a

motion to suppress. First, we review the historical facts found by the trial court for clear

error and give due weight to the inferences drawn from those facts by the trial court.



                                             3
                     OHIO FIRST DISTRICT COURT OF APPEALS



Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996).

Second, we must independently decide whether the facts meet the applicable legal

standard. See State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71.

       {¶10}    The state argues that because the affidavit for the search warrant was

supported by facts, independent of the protective sweep, which would have provided

sufficient probable cause to search Patton’s home, the trial court erred in

suppressing the evidence seized inside Patton’s home on the basis of the illegal

protective search. We agree.

       {¶11}   Here, the police testified that they had made the decision to seek a

search warrant and that they were actively working on securing the warrant prior to

entering Patton’s home.      While an officer testified that he had seen two bags of

marijuana on the dryer in the basement during the protective sweep of the home, the

affidavit supporting the search warrant did not mention this information. Rather,

the affidavit provided only the following facts:

               On August 4, 2011 at approximately 2036 hours officers

               received an anonymous tip that the home owner at 6835

               Savannah Ave. had marijuana plants growing in the rear

               yard. The caller stated that the plants were contained in

               the rear fenced in yard and behind a separate fenced in

               area and the plants were visibly growing over the top of

               the fence. The officers responded to the residence and

               were able to see the marijuana plants protruding above a

               6ft privacy fence, from the driveway.        Officers then

               walked through a rear alley behind the house and were

               able [to] smell the odor of raw marijuana. While in the



                                            4
                       OHIO FIRST DISTRICT COURT OF APPEALS



               alley officers were able to have a closer look at the plants

               and determined that there were 20-30 7 ft marijuana

               plants growing in the yard. While onsece [sic] a male

               entered the yard and entered the house through a

               basement door. The male was taken from the residence

               and a protective sweep of the residence was conducted,

               no other persons were present. While officers were still

               present the resident was taken into custody and charged

               with illegal cultivation for the plants which were in plain

               view.

       {¶12}   As is plain from the face of the affidavit, none of the information

gained from the protective sweep of Patton’s home was included in the affidavit for

the search warrant. Thus, the trial court erred as a matter of law in concluding that

the affidavit for the search warrant had included tainted information which affected

the municipal court’s decision to issue the warrant. See State v. Gross, 97 Ohio St.3d

121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 16-17; see also Murray v. United States,

487 U.S. 533, 541, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988).

       {¶13}   Moreover, we agree with the state that the anonymous tip, the

officer’s visual confirmation of 20-30 seven-foot-tall marijuana plants growing in the

rear yard of the home, and the smell of marijuana provided sufficient probable cause

for the municipal court to issue the warrant to search Patton’s home. See State v.

George, 45 Ohio St.3d 325, 330, 544 N.E.2d 640 (1989). We, therefore, sustain the

state’s sole assignment of error, reverse the trial court’s judgment, and remand this

cause for further proceedings in the trial court.




                                            5
                     OHIO FIRST DISTRICT COURT OF APPEALS


                                               Judgment reversed and cause remanded.

HILDEBRANDT, P.J, and CUNNINGHAM, J., concur.


Please note:
       The court has recorded its own entry this date.




                                           6
