[Cite as State v. Cook, 2011-Ohio-1776.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee   :       Hon. John W. Wise, J.
                                              :
-vs-                                          :
                                              :       Case No.      2010-CA-40
MEGAN COOK                                    :                     2010-CA-41
                                              :
                     Defendant-Appellant      :       OPINION

and


STATE OF OHIO

                         Plaintiff-Appellee
-vs-

BILLY J. COOK, III.

                    Defendant-Appellant


CHARACTER OF PROCEEDING:                          Criminal appeal from the Muskingum
                                                  County Court of Common Pleas, Case No.
                                                  CR2009-157 & CR2009-158

JUDGMENT:                                         Affirmed

DATE OF JUDGMENT ENTRY:                           April 8, 2011

APPEARANCES:

For Plaintiff-Appellee                            For Defendants-Appellants

ROBERT L. SMITH                                   DENNIS G. DAY
Assistant Prosecuting Attorney                    330 South High Street
27 North Fifth Street,Ste. 201                    Columbus, OH 43215
Zanesville, OH 43701
[Cite as State v. Cook, 2011-Ohio-1776.]


Gwin, P.J.

         {¶1}    Defendant-appellants, Billy J. Cook, III and Megan M. Cook, appeal their

 convictions in the Muskingum County Court of Common Pleas upon the charges of

 Cultivation of Marijuana, in violation of Ohio Revised Code Section 2925.04(A), a

 felony of the third degree; and Possession of Marijuana, in violation of Ohio Revised

 Code Section 2925.11(A), a felony of the third degree. Plaintiff-appellee is the State of

 Ohio.

                                STATEMENT OF THE FACTS AND CASE

         {¶2}    During August of 2007, the Muskingum County Sheriff's Department

 received information from Guernsey-Muskingum Electric Company concerning

 unusually high electric usage at 10545 Hewitt Road, Nashport, Ohio. The caller

 advised that usage was so high that the company had to install a transformer with

 larger capacity in order to serve the customer who was identified to officers as Megan

 Cook. (Search warrant probable cause affidavit, paragraph 2).

         {¶3}    On June 24, 2009, Detective Kyle Bolster of the Central Ohio Drug

 Enforcement Task Force advised the Muskingum County Sheriff's Department that he

 had received an anonymous complaint that marijuana was being cultivated inside a

 building on property located at 10545 Hewitt Road, Nashport, Ohio. The caller advised

 that he had "set the grow up" five (5) years earlier and that as of one (1) week prior to

 his call to Bolster, the building was full of growing marijuana plants. The caller further

 advised that the grow operation was maintained by Billy and Megan Cook and that Billy

 and Megan Cook did not live on the property. (Search warrant probable cause affidavit,

 paragraph 3).
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                    3


      {¶4}   On July 2, 2009, three (3) detectives from the Muskingum County Sheriff's

Department went to 10545 Hewitt Road, Nashport, Ohio in order to speak with the

occupants concerning the complaint. Detective Wilhite testified that, upon arrival,

officers traversed a driveway approximately three hundred (300) feet in length. Officers

encountered no gates and did not observe any "no trespassing" signs on the property.

Upon traveling the entire length of the driveway, officers observed a house and pole

barn that was approximately fifty (50) to one hundred (100) feet apart. Officers did not

observe the presence of any vehicles. Upon exiting their vehicle, all three officers

noticed the odor of green or growing marijuana emanating from a pole barn structure.

Officers approached the residence and knocked upon the door but received no answer.

Officers noticed that the home appeared to be vacant and under construction. Officers

also noticed that a garden hose was running from an outside spigot and into the pole

barn. Officers also noticed two (2) five gallon buckets, various plant stakes, pieces of

black plastic water line, potting soil, and fertilizer around the building. Finally, they

observed two (2) surveillance cameras and two (2) motion detectors which officers

knew from experience are often used by individuals engaged in illegal cultivation

activities for counter-surveillance purposes. (Search warrant probable cause affidavit,

paragraphs 5 and 7).

      {¶5}   After smelling the odor of green or growing marijuana, officers contacted

Lt. Fisher and his K-9, Zero. Fisher and Zero, who is certified in the State of Ohio for

narcotics sniffing, came to the Hewitt Road address. Upon entering the property, Zero

alerted to the presence of narcotics in the pole barn structure. (Search warrant

probable cause affidavit, paragraphs 6 and 8).
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                     4


      {¶6}    Thereafter, Detective Wilhite prepared an application for a search warrant

for 10545 Hewitt Road, Nashport, Ohio, including the residence and pole barn. Judge

Jay Vinsel, of the Muskingum County Court approved the application and signed the

warrant on July 2, 2009. Upon execution of the warrant, officers seized eighty-seven

(87) marijuana plants, grow lights, transformers, chemicals, and other paraphernalia

used to cultivate marijuana. Officers also found twelve (12) plastic bags which

contained processed marijuana as well miscellaneous documents in the-name of

Megan and Billy Cook.

      {¶7}    On August 5, 2009, appellants were indicted by the Muskingum County

Grand Jury.

      {¶8}    On February 8, 2010, appellants filed identical motions to suppress in

which each moved the "Court for an order suppressing for use as evidence, any and all

items or things found, or observed and/or seized by law enforcement officers or any

persons assisting them while executing a search warrant on July 2, 2009, at 10545

Hewitt Road, Nashport, Ohio, as well as any evidence derived directly or indirectly

therefrom or connected thereto." These motions came on for oral hearing on February

19, 2010. At the hearing, the appellants called Detective Matt Wilhite to the stand.

Upon a review of the testimony and the affidavit filed in support of the application for a

search warrant, the trial court denied the motion to suppress.

      {¶9}    On February 22, 2010, appellants withdrew their prior pleas of "not guilty"

and entered pleas of "no contest" to both counts of the Indictment. After hearing the

testimony of Detective Matt Wilhite of the Muskingum County Sheriff's Department,

Judge Fleegle found the appellants "guilty" of both counts.
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                               5


       {¶10} On July 12, 2010 appellants returned to court for sentencing. At that time,

the Court ordered both appellants to serve a one (1) year prison term on each count,

said sentences to be served concurrent with one another. In addition, the Court

ordered each appellant to pay a fine of five thousand dollars ($5,000.00) and to pay

court costs. Finally, the Court ordered that certain items of personal property seized by

detectives during the execution of the search warrant be forfeited to the State.

       {¶11} Appellants have timely appealed1 raising an identical assignment for error

for our consideration:

       {¶12} “I. THE TRIAL COURT ERRED IN OVERRULING APPELLANTS’

MOTION TO SUPPRESS EVIDENCE.”

                                          Standard of Review

       {¶13} 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


       1
         Appellant Megan M. Cook in Muskingum App. No. CT2010-0040, and Appellant Billy J. Cook, III
in Muskingum App. No. CT2010-0041. The cases have been consolidated for appeal.
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                       6

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.

                                                I.

      {¶14} Appellants’ sole assignment of error relates to the propriety of the trial

court’s overruling of their identical motions to suppress. Subsumed within this

generalized objection are five challenges to the trial court's ruling: Specifically,

appellants contend that: (1) utility usage information that is nearly two years old should

not have been used to corroborate a claim that marijuana was presently being grown;

(2) information received from an anonymous informant to support the issuance of a

search warrant was void when the reliability of the informant is unknown and the point

in time at which the information is provided was unknown; (3) the judge is not permitted

to make assumptions relating to the qualifications of law enforcement officers when

that information is omitted from the affidavit; (4) the search was invalid because the

use of a drug sniffing canine outside of the residence required a search warrant; and

(5) a full search of a residence and its curtilage, without physical entry into any

buildings, requires a search warrant.
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                          7


      {¶15} In addressing the substance of appellants’ 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:

      {¶16} “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.”

      {¶17} 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
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                     8


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 Gates, 462 U.S. at 238-239. See

also, State v. Norman, Guernsey App. No. 2010-CA-21, 2011-Ohio-568 at ¶ 33.

      {¶18} 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

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, commonsense

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. See also, State

v. Norman, supra at ¶ 38.

      {¶19} 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
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                      9

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 2, 2009.

       {¶20} (1) Utility usage information that is nearly two years old can be relied

upon to support a claim that marijuana is presently being grown on the premises.

       {¶21} Appellant argues the utility usage information in the case at bar was

received on August 28, 2007, nearly two years prior to the issuance of the search

warrant. On its face, appellant contends the information concerning utility usage is

stale and could not constitute sufficient probable cause upon which the reviewing court

should issue the search warrant.

       {¶22} Appellant cites to only the decision of the Sixth Circuit of United States

Court of Appeals in United States v. Brooks(2010), 594 F.3d 488 to support his

contention. In that case, Mr. Brooks had been indicted for possession with the intent to

distribute cocaine base (crack) after police executed a search warrant on his residence

and found, among other things, 136.21 grams of crack. Brooks moved to suppress the

evidence on the grounds that the affidavit submitted in support of the application for the

search warrant was insufficient to give rise to probable cause to search the residence.

Specifically, Brooks argued that the majority of the information in the search warrant

affidavit was stale and that what information was not stale was insufficient to give rise
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                     10


to probable cause to search the residence. The district court agreed and suppressed

all of the evidence obtained from the search. The government appealed that ruling.

Although the Court of Appeals for the Sixth Circuit agreed with the district court that

much of the information set forth in the affidavit was stale, the Court found that the non-

stale information was, on its own, sufficient to give rise to probable cause to believe

that contraband or evidence of a crime would be present in Brooks's residence. It

therefore reversed the judgment of the district court and remanded the case for further

proceedings.

      {¶23} In reviewing the facts, the Sixth Circuit Court of Appeals noted whether

information is stale depends on the inherent nature of the crime. Whether information is

stale in the context of a search warrant turns on several factors, such as “the character

of the crime (chance encounter in the night or regenerating conspiracy?), the criminal

(nomadic or entrenched?), the thing to be seized (perishable and easily transferable or

of enduring utility to its holder?), [and] the place to be searched (mere criminal forum of

convenience or secure operational base?).” United States v. Hammond, 351 F.3d 765,

771-72 (6th Cir. 2003) (quoting United States v. Greene, 250 F.3d 471, 480-81 (6th Cir.

2001)). In the context of drug crimes, information goes stale very quickly “because

drugs are usually sold and consumed in a prompt fashion.” United States v. Frechette,

583 F.3d 374, 378 (6th Cir. 2009). Brooks, 594 F.3d at 493.

      {¶24} However, Brooks differs from appellants’ case in one very important

respect. The Brooks case concerned allegations of a drug sale operation involving

crack cocaine. In contrast, appellants’ cases concern an allegation of a grow operation

involving marihuana. This distinction has been recognized by the courts as allowing for
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                 11


the use of older information. In fact, the Sixth Circuit Court of Appeals itself has

recognized this distinction.

      {¶25} In United State v. Thomas (1993), 9 F.3d 110, the Court observed,

“Different offenses have different periods of time in which the government can act on

information before it is considered stale. A marijuana growing operation, in which the

marijuana must grow to maturity and then be harvested, has a longer lifetime of

relevant data than a cocaine distribution operation in which all sales may be

consummated within hours of delivery. See United States v. Greany, 929 F.2d 523,

525 (9th Cir. 1991) (nearly two-year old information on marijuana growing operation

upheld, staleness evaluated in light of particular facts of case and nature of criminal

activity and property sought); United States v. Dozier, 844, F.2d 701, 707 (9th Cir.

1988) (marijuana cultivation is long-term crime; even “substantial” time lapse not

controlling on staleness).”

      {¶26} Further the Brooks court recognized that stale information can

nevertheless be properly considered by the magistrate for purposes of flavoring or

strengthening other, non-stale information in an affidavit. 594 F.3d at n.4.   See also

United States v. Spikes (6th Cir 1998), 153 F.3d 913, 924; State v. Bernhard, Greene

App. No. 2004 CA 6, 2005-Ohio-1052 at ¶10.

                                 {¶27}     (2) Anonymous Tip

      {¶28} Appellant next argues that the information received by the affiant

constituted an anonymous tip received some time before June 25, 2009.

      {¶29} We are not persuaded by appellants’ reliance on upon Sgro v. United

States (1932), 287 U.S. 206, 53 S.Ct. 138. In Sgro, the United States Supreme Court
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                    12


construed the National Prohibition Act's authorization for law enforcement agents to

obtain warrants to search for intoxicating liquor. 287 U.S. 206, 53 S.Ct. 138. The Act

provided that any such warrant must be executed and returned within ten days of its

date of issuance or it would be void. Id. at 209-10, 53 S.Ct. 138. Agents obtained a

warrant but failed to execute it within the prescribed ten-day period. Id. They returned

to the issuing Commissioner three weeks later and the Commissioner simply changed

the date of the old warrant and reissued it without requiring any additional evidence

that probable cause still existed. Id. at 208, 53 S.Ct. 138.

      {¶30} The Court refused to approve this procedure, noting that the Fourth

Amendment requires that facts constituting probable cause must be “so closely related

to the time of the issue of the warrant as to justify a finding of probable cause at that

time.” Id. at 210, 53 S.Ct. 138. It is in light of this constitutionally required temporal

proximity, the Court said, that “we must read the [statutory] provision which in explicit

terms makes a warrant void unless executed within ten days after its date. That period

marks the permitted duration of the proceeding in which the warrant is issued.” Id. at

211, 53 S.Ct. 138. In effect, the Court held that the probable cause that must exist

when the warrant is issued must also exist when the warrant is executed, but its

existence cannot be presumed beyond the period provided in the statute for execution.

See, State v. Miguel (2004), 209 Ariz 338, 101 P.2d 214 at ¶13.

      {¶31} Various federal circuit courts, as reviewed in State v. Marko (1973), 36

Ohio App.2d 114, 118-119, 303 N.E.2d 94, have held that there is no arbitrary time

limit on how old information contained in an affidavit may be, so long as there are

sufficient facts to justify a conclusion that the subject contraband is probably on the
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                       13

person or premises to be searched at the time the warrant is issued. See United States

v. Johnson (C.A. 10, 1972), 461 F.2d 285; Durham v. United States (C.A. 9, 1968), 403

F.2d 190; United States v. Guinn (C.A. 5, 1972), 454 F.2d 29, certiorari denied (1972),

407 U.S. 911, 92 S.Ct. 2437, 32 L.Ed.2d 685; Schoeneman v. United States (C.A.D.C.,

1963), 317 F.2d 173. See also, State v. Yanowitz (1980), 67 Ohio App.2d 141, 147,

426 N.E.2d 190, 193.

      {¶32} In U.S. v. Dennis (C.A.8, 1980), 625 F.2d 782, the Eighth Circuit stated:

      {¶33} “Probable cause must exist at the time the warrant is issued. If past

circumstances would have justified the search, there must be reason to believe that

those circumstances still exist at the time of the search.” Dennis at 792.

      {¶34} Regarding the issue of whether past reports of criminal activity can be

used to support a search warrant, the Eighth District has stated “[i]t is well-settled that

information about criminal activity at an earlier unspecified time may combine with

factually connected, recent, time-specific information to provide substantial basis for

the conclusion that criminal activity described in an affidavit is sufficiently close in time

to the search warrant application.” (Citations omitted.) U.S. v. Day (C.A.8, 1991), 949

F.2d 973, 978.

      {¶35} In the appellants’ case, the information provided by the anonymous tip

was “rich” in relevant detail. It provided the address and the names of the residents;

stated that the anonymous informant set up a large marihuana grow operation

approximately five years ago in the garage on the property; that the informant had

visited the property one week ago and observed the garage was filled with growing
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                       14


marihuana plants; that the appellants did not live at the residence but were there

approximately eight hours a day every day.

       {¶36} In Detective Wilhite’s testimony he stated that Detective Boerstler had

indicted he had received the anonymous tip just prior to making contact with Detective

Wilhite on June 24, 2009. (T. at 7). However, Detective Wilhite admitted that he did not

include the information concerning the time that Detective Boerstler received the

anonymous tip in his affidavit in support of his request for a search warrant. (Id. at 7-8).

       {¶37} Although the tip standing alone may have been insufficient, stale

information can nevertheless be properly considered by the magistrate for purposes of

flavoring or strengthening other, non-stale information in an affidavit as we have

previously noted.

       {¶38} (3) Must the affidavit contain a foundation that supports the

qualifications for the officer to recognize the odor of marihuana?

       {¶39} Appellants next contend that the search warrant was invalid because the

affiant did not list his qualifications to detect marijuana through the sense of smell.

       {¶40} The essential test for determining whether the detection of an odor

establishes sufficient probable cause for a search warrant was set forth by the

Supreme Court in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436

(1948). In Johnson, the Supreme Court found that a magistrate may rely on the

detection of an odor to establish probable cause for a search “[if] the presence of the

odor is testified to before [the] magistrate and he finds the affiant qualified to know the

odor, and it is one sufficiently distinct to identify a forbidden substance.” Id. at 14. See,

also State v. Moore (2000), 90 Ohio St. 3d 47, 734 N.E. 2d 804.
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                       15

      {¶41} In Moore, supra the Ohio Supreme Court noted that “[t]he United States

Supreme Court has long acknowledged that odors may be persuasive evidence to

justify the issuance of a search warrant.” Id., citing Johnson v. United States (1948),

333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436. The Moore court emphasized that its holding

was based on the totality of the circumstances, which in that instance, justified the

warrantless search of the defendant's person “[b]ecause marijuana and other narcotics

are easily and quickly hidden or destroyed, [and] a warrantless search may be justified

to preserve evidence.” Id. at 52, 734 N.E. 2d 804. The court reasoned that those are

“compelling reasons” or “exceptional circumstances” that would “justify an intrusion

without a warrant.” Id. We reached the same conclusion that a warrantless search of a

suspect’s motor vehicle was unreasonable based solely upon the smell of marihuana

without evidence that the officer was qualified to recognize the odor. State v. Birdsong,

Stark App. No. 2008 CA 00221, 2009-Ohio-1859.

      {¶42} In the case at bar, the affidavit stated that the officer was a veteran law

enforcement officer with over three and one half (31/2) years of experience and training

in the area of narcotics investigation. The affiant stated that he has participated in over

two hundred (200) such investigations and executed or authored over fifty (50)

narcotics search warrants. During the hearing on appellants’ Motions to Suppress,

Detective Wilhite testified as follows,

      {¶43} “Q. And how are you able to - - to distinguish marijuana from other plants?

      {¶44} “[Detective Wilhite]: Because I’ve been employed at the sheriff’s office at

this time for a little over nine years. During that time, three-and-a-half to four years as a

narcotics detective. Throughout the time being a narcotics detective, I’ve been exposed
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                     16


to marijuana on numerous occasions. On one occasion I had the opportunity to pull

over 5,000 growing marijuana plants from one marijuana grow.

      {¶45} “Q. I’m not sure, when you answered my question a couple seconds ago,

whether you distinguished whether the smell was green and growing, or whether it was

burning?

      {¶46} “[Detective Wilhite]: Yes, I can distinguish between the burning smell and

the green and growing. The green and growing - - because I smelled both burning

marijuana and the green and growing.          More specifically, the green and growing

marijuana due to tearing down of several thousands of growing marijuana plants.

      {¶47} “Q. And which - - which did you smell on this occasion?

      {¶48} “[Detective Wilhite]: I smelled green and growing marijuana.”

      {¶49} (T. at 14-15).

      {¶50} Thus the record in the case at bar contains ample evidence that the

affiant, Detective Wilhite, is a person qualified by his training and experience to know

and identify the odor of marijuana and it is a distinctive odor that undoubtedly identifies

a forbidden substance. In the case at bar, appellants do not contend that the affidavit

was false or misleading as to the affiant’s ability to detect the smell of marijuana.

      {¶51} We must be mindful of the “ * * * elementary proposition of law that an

appellant, in order to secure reversal of a judgment against him, must not only show

some error but must also show that that error was prejudicial to him.” See Smith v.

Flesher ( 1967), 12 Ohio St. 2d 107, 233 N.E. 2d 137; State v. Stanton(1968), 15 Ohio

St.2d 215, 217, 239 N.E.2d 92,94; Wachovia Mtg. Corp. v Aleshire, Licking App. No.

09 CA 4, 2009-Ohio-5097 at ¶16. See, also, App.R. 12(D).
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                          17


      {¶52} In the case at bar, appellant has not made any argument relative to the

prejudicial effect of the issuance of the warrant based upon Detective Wilhite’s failure

to specifically include in the affidavit his ability and qualifications to identify the odor of

marijuana.

      {¶53} (4) The use of a drug sniffing canine at a residence does not require

a search warrant as long as the sniffing canine is legally present at its vantage

point when its sense is aroused.

      {¶54} The appellants next argue that the trial court erred in denying their

motions to suppress because the dog sniff while on the premises constituted an illegal

search under the Fourth Amendment and, thus, could not be used as evidence of

probable cause for the search warrant.

      {¶55} In support of his contention that a dog sniff is a search, the appellant cites

State v. Rabb, 920 So. 2d 1175 (Fla. 4th DCA 2006), review denied, 933 So.2d 522

(Fla.2006), cert. denied, 549 U.S. 1052, 127 S.Ct. 665, 166 L.Ed.2d 513 (2006), in

which the Fourth District held that a dog sniff at the front door of a house violated the

Fourth Amendment. Such reliance, however, is misplaced as State v. Jardines, --- So.

3d ----, 2008 WL 4643082, 33 Fla. L. Weekly D2455 (Fla. 3d DCA Oct. 22, 2008), held

that Rabb was wrongly decided. Accord Stabler v. State, 990 So.2d 1258 (Fla. 1st DCA

2008).

      {¶56} In determining that Rabb had been wrongly decided, the Court in Jardines,

supra noted that in Illinois v. Caballes, 543 U.S. 405, 408, 125 S.Ct. 834, 160 L.Ed.2d

842 (2005), the United States Supreme Court expressly rejected the notion that a “dog

sniff itself infringed [a] ... constitutionally protected interest in privacy.” In doing so, the
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                   18


Court confirmed that because a dog sniff detects only contraband, and because no one

has a “legitimate” privacy interest in contraband, a dog sniff is not a search under the

Fourth Amendment. In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77

L.Ed.2d 110 (1983), the United States Supreme Court treated a canine sniff by a well-

trained narcotics-detection dog as “sui generis ” because it “discloses only the

presence or absence of narcotics, a contraband item.” Id., at 707, 103 S.Ct. 2637; see

also Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).

Respondent likewise concedes that “drug sniffs are designed, and if properly

conducted are generally likely, to reveal only the presence of contraband.” Caballes,

543 U.S. at 408-9, 125 S.Ct. 834 (some citations omitted). The court in Jardines further

noted,

      {¶57} “Based on this reasoning, we reject the notion that Kyllo v. United States,

533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), relied on in Rabb, makes a dog's

detection of contraband while standing on a front porch open to the public, a search

which compromises a legitimate privacy interest. Kyllo involved the use of a

mechanical device which detected heat radiating from the walls of a home. There, the

court was concerned with the use of constantly improving technological devices that,

from outside a home, could intrude into the home and detect legitimate as well as

illegal activity going on inside. Kyllo, 533 U.S. at 40, 121 S.Ct. 2038 (“Where, as here,

the government uses a device that is not in general public use, to explore details of the

home that would previously have been unknowable without physical intrusion, the

surveillance is a ‘search’ and presumptively unreasonable without a warrant.”).
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                  19


      {¶58} “A dog's nose is not, however, a ‘device,’ nor is it improved by technology.

Dogs have been used to detect scents for centuries all without modification or

‘improvement’ to their noses. That, perhaps, is why the Supreme Court describes them

as ‘sui generis,’ in Place. Place, 462 U.S. at 707, 103 S.Ct. 2637. Moreover, and unlike

the thermal imaging device at issue in Kyllo, a dog is trained to detect only illegal

activity or contraband. It does not indiscriminately detect legal activity.” State v.

Jardines, supra at 4-5.

      {¶59} Finally, the Jardines court noted, “As recently observed in People v.

Jones, 279 Mich.App. 86, 755 N.W.2d 224, 228 (2008), a majority of federal circuit

courts have viewed the Place Court's holding as generally categorizing canine sniffs as

non-searches. See, e.g., United States v. Reed, 141 F.3d 644, 648 (6th Cir.1998); see

also United States v. Brock, 417 F.3d 692 (7th Cir. 2005); United States v. Roby, 122

F.3d 1120 (8th Cir. 1997); United States v. Vasquez, 909 F.2d 235 (7th Cir. 1990).

Likewise, “the vast majority of state courts considering canine sniffs have recognized

that a canine sniff is not a Fourth Amendment search. People v. Jones, 755 N.W.2d at

228.”Jardines, supra 9 So.3d at 6(Footnotes omitted).

      {¶60} We agree with the court’s conclusion in Jardines, “persuasive authority

convinces us that a canine sniff is not a search within the meaning of the Fourth

Amendment as long as the sniffing canine is legally present at its vantage point when

its sense is aroused. Jardines, supra 9 So.3d at 6. (Quoting People v. Jones, 755

N.W.2d at 228).
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                   20


      {¶61} (5) Whether a full search of the exterior of an unoccupied residence

and its curtilage, without physical entry into any buildings, requires a search

warrant.

      {¶62} Appellants next contend that the officers’ actions in going onto the

premises constituted an unlawful, warrantless search and seizure because the barn

and the unoccupied residence required a search warrant. Appellant makes no specific

factual demonstration based upon the record that the officers made any observation

from a place that they could not lawfully enter upon. See, App.R. 16(A)(7); State ex rel.

Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108

Ohio St.3d 288, 2006-Ohio-903, at ¶ 13; See also, State v. Davis, Licking App. No.

2007-CA-00104, 2008-Ohio-2418 at ¶ 91.

      {¶63} The Fourth Amendment's protection against warrantless home entries

extends to the “curtilage” of an individual's home. United States v. Dunn (1987), 480

U.S. 294, 300, 107 S.Ct. 1134, 1139, 94 L.Ed. 2d 326. “Curtilage” has been defined as

an area “‘so intimately tied to the home itself that it should be placed under the home's

“umbrella” of Fourth Amendment protection.’” State v. Payne (1995), 104 Ohio App.3d

364, 368, 662 N.E.2d 60, quoting Dunn, 480 U.S. at 301, 107 S.Ct. at 1140. The

central inquiry is whether the area harbors the intimate activity associated with the

sanctity of a man's home and the privacies of life.” ‘ “ Dunn, 480 U.S. at 300, 107 S.Ct.

at 1139, quoting Oliver v. United States (1984), 466 U.S. 170, 180, 104 S.Ct. 1735,

1742, 80 L.Ed.2d 214.(Internal quotation marks omitted).

      {¶64} Dunn set forth four factors for consideration in determining whether a

certain area outside the home itself should be treated as curtilage: (1) the proximity of
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                  21


the area claimed to be curtilage to the home; (2) whether the area is included within an

enclosure surrounding the home; (3) the nature of the uses to which the area is put;

and (4) the steps taken by the resident to protect the area from observation by people

passing by. 480 U.S. at 301, 107 S.Ct. at 1139.

     {¶65} Thus, it has been held that the only areas of the curtilage where officers

may go are those impliedly open to the public. This area includes walkways, driveways,

or access routes leading to the residence. State v. Birdsall, Williams App. No. WM-09-

016, 2010-Ohio-2382 at ¶ 13. (Citing State v. Dyreson (Wash.App.2001), 104

Wash.App. 703, 17 P.3d 668; State v. Pacheco (Mo.App.2003), 101 S.W.3d 913, 918;

State v. Johnson (N.J. 2002), 171 N.J. 192, 793 A.2d 619). The guiding principal is that

a police officer on legitimate business may go where any “reasonably respectful

citizen” may go. Birdsall, supra; Dyreson, supra; see, also, State v. Tanner (Mar. 10,

1995), 4th Dist. No. 94CA2006. Police are privileged to go upon private property when

in the proper exercise of their duties. See State v. Chapman (1994), 97 Ohio App.3d

687, 647 N.E.2d 504.

     {¶66} Moreover, the porch of a residence has been held to be a public place for

purposes of Fourth Amendment analysis. State v. Swonger, Franklin App. No. 09AP-

1166, 2010-Ohio-4995 at ¶ 15. [Citing State v. Lomack (Mar. 11, 1999), 10th Dist. No.

98AP-708 (finding that the defendant was in a public place at the time of his attempted

arrest as he was “standing on his porch”), citing United States v. Santana (1976), 427

U.S. 38, 42, 96 S.Ct. 2406, 2410, 49 L.Ed.2d 300; State v. Higgins, 8th Dist. No.

86241, 2006-Ohio-178 (a residence's porch is not within the curtilage of a home so as

to be subject to Fourth Amendment protections); State v. Williamson, 12th Dist. No.
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                   22


CA2003-02-047, 2004-Ohio-2209 (a residence's porch is not within the curtilage of a

home); State v. Eberhart, 1st Dist. No. C-010346, 2002-Ohio-1140 (a porch may be

considered a public place even though it is on the homeowner's property)].

      {¶67} In the case at bar, Detective Wilhite and the other officers were permitted

to go the location, drive into the driveway and walk up to the front door for the purpose

of talking to the occupants about the complaints that they were growing marijuana in

the garage. Nothing in either the affidavit or the record indicates that the officers

entered inside the house or the barn. No photographs of the area in question were

entered into evidence. Appellant did not present any evidence to establish that there

were “No Trespassing” signs anywhere on the property.

      {¶68} Appellants’ reliance upon State v. Woljevach, 160 Ohio App.3d 757, 828

N.E.2d 1015 is not persuasive. As we previously have noted Detective Wilhite was

qualified to detect the odor of raw marijuana. Further, Woljevach is also distinguishable

because we have found a canine sniff is not a search within the meaning of the Fourth

Amendment as long as the sniffing canine is legally present at its vantage point when

its sense is aroused. In the case at bar, the affidavit established the qualifications of

the K-9 to detect the odor of marijuana. The K-9 was deployed in the driveway and

thus was legally upon the property.
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                               23


                                       Conclusion

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

appellants’ motions to suppress. Appellants’ sole assignment of error, including each

subpart, is overruled.

      {¶70} For the foregoing reasons, the judgment of the Muskingum County Court

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

By Gwin, P.J., and

Wise, J., concur;

Hoffman, J., concurs

separately




                                          _________________________________
                                          HON. W. SCOTT GWIN

                                          _________________________________
                                          HON. WILLIAM B. HOFFMAN

                                          _________________________________
                                          HON. JOHN W. WISE




WSG:clw 0329
Muskingum County, Case Nos. 2010-CA-40 & 2010-CA-41                                      24


Hoffman, J., concurring

       {¶71} I concur in the majority’s overall disposition of Appellant’s sole assignment

of error and specifically concur in its analysis and disposition of subsections (2), (4) and

(5) of the opinion.

       {¶72} I further concur in the majority’s conclusion as to subsections (1) and (3).

       {¶73} With respect to subsection (1), while I disagree with the conclusion the

utility usage information is not stale to support the claim marijuana was presently being

grown on the premises, I do agree it can be properly considered for purposes of

flavoring or strengthening other, non-stale information in an affidavit. Specifically as

applied to this case, the utility usage information strengthens the reliability of the

anonymous informant’s tip.

       {¶74} As to subsection (3), I also agree with the majority’s conclusion but do so

limiting my consideration only to the information regarding the affiant’s qualifications as

set forth in the affidavit. As the attack is on the sufficiency of the affidavit to support

issuance of the search warrant, the additional evidence of the officer’s training and

experience produced during the motion to suppress goes beyond the four corners of the

affidavit. As such, I find it does not bear on the issue raised.




                                           _____________________________________
                                           HON. WILLIAM B. HOFFMAN
[Cite as State v. Cook, 2011-Ohio-1776.]


            IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
MEGAN COOK                                       :
                                                 :
                                                 :
                        Defendant-Appellant      :       CASE NO.      2010-CA-40
and                                                                    2010-CA-41

STATE OF OHIO

                            Plaintiff-Appellee
-vs-

BILLY J. COOK, III.

                       Defendant-Appellant



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

the Muskingum County Court of Common Pleas, Muskingum County, Ohio, is hereby

affirmed. Costs to appellants.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN

                                                     _________________________________
                                                     HON. WILLIAM B. HOFFMAN

                                                     _________________________________
                                                     HON. JOHN W. WISE
