[Cite as State v. Beauford, 2011-Ohio-5628.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                          C.A. No.     25767

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
TERRELL L. BEAUFORD                                    COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 10 05 1240

                                 DECISION AND JOURNAL ENTRY

Dated: November 2, 2011



        CARR, Judge.

        {¶1}     Appellant, Terrell Beauford, appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms.

                                                 I.

        {¶2}     On May 18, 2010, Beauford was indicted on one count each of trafficking in

cocaine, possession of cocaine, having weapons while under disability, possessing criminal tools,

possession of marijuana, driving under suspension, and two criminal forfeiture specifications.

He pleaded not guilty to the charges at arraignment.

        {¶3}     On July 15, 2010, Beauford filed a motion to suppress evidence seized as a result

of an allegedly improperly issued search warrant. The trial court held a hearing on the motion.

On August 17, 2010, the trial court denied Beauford’s motion to suppress.

        {¶4}     On December 9, 2010, the trial court held a change of plea hearing, during which

Beauford pleaded no contest to the indicted charges. The trial court entered a finding of guilty
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and sentenced Beauford pursuant to the terms of the plea negotiation. Beauford filed a timely

appeal, raising one assignment of error for review.

                                                II.

                                 ASSIGNMENT OF ERROR

       “APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHTS UNDER
       THE FOURTH AMENDMENT TO THE CONSTITUTION OF THE UNITED
       STATES BY THE TRIAL COURT’S DENIAL OF APPELLANT’S MOTION
       TO SUPPRESS EVIDENCE SEIZED DURING THE EXECUTION OF A
       SEARCH WARRANT.”

       {¶5}    Beauford argues that the trial court erred by denying his motion to suppress

because the affidavit in support of the search warrant was insufficient to establish probable

cause. Specifically, Beauford argues that the search warrant affidavit formed an insufficient

basis for probable cause because it contained misstatements of fact and because it was premised

on uncorroborated hearsay statements of a confidential informant. This Court disagrees.

       {¶6}    A motion to suppress presents a mixed question of law and fact:

       “When considering a motion to suppress, the trial court assumes the role of trier
       of fact and is therefore in the best position to resolve factual questions and
       evaluate the credibility of witnesses. Consequently, an appellate court must
       accept the trial court’s findings of fact if they are supported by competent,
       credible evidence. Accepting these facts as true, the appellate court must then
       independently determine without deference to the conclusion of the trial court,
       whether the facts satisfy the applicable legal standard.” (Internal citations
       omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶8.

       {¶7}    The Fourth Amendment to the United States Constitution prohibits unreasonable

searches and seizures, not every search and seizure. The United States Supreme Court has held

that “before a warrant for either arrest or search can issue [the Fourth Amendment probable-

cause requirements] require that the judicial officer issuing such a warrant be supplied with

sufficient information to support an independent judgment that probable cause exists for the

warrant.” Whitely v. Warden (1971), 401 U.S. 560, 564.
                                                   3


        {¶8}    Crim.R. 41(C) addresses the issuance of search warrants and states in relevant

part: “A warrant shall issue on either an affidavit or affidavits sworn to before a judge of a court

of record ***. 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.” (Emphasis added.) Crim.R. 41(C)(1). The judge shall

issue the search warrant upon determining that probable cause for the search exists. Crim.R.

41(C)(2). The rule further provides that “[t]he 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.” Id.

        {¶9}    A court reviewing the sufficiency of probable cause in a submitted affidavit

should not substitute its judgment for that of the issuing judge. State v. Tejada, 9th Dist. No.

20947, 2002-Ohio-5777, at ¶7, citing State v. George (1989), 45 Ohio St.3d 325, at paragraph

two of the syllabus. Rather, the duty of a reviewing court is to determine whether the magistrate

or judge who issued the search warrant had a substantial basis for concluding that probable cause

existed. George, 45 Ohio St.3d at paragraph two of the syllabus. Great deference is to be given

to the issuing judge’s determination and doubtful or marginal cases are to be resolved in favor of

upholding the validity of the warrant. State v. Cash (Mar. 14, 2001), 9th Dist. No. 20259, citing

George, 45 Ohio St.3d at paragraph two of the syllabus.

        {¶10} This Court has recognized that “[t]here is no need for a declaration of the

reliability of an informant when the informant’s information is corroborated by other

information.” (Quotations and citations omitted). State v. Fisher, 9th Dist. No. 22481, 2005-
                                                4


Ohio-5104, at ¶7. “It is not essential that the affiant swear that the informant supplied reliable

information in the past, but it is generally held that a statement that the informant has been

reliable in the past is sufficient.” (Citations omitted.) State v. Karr (1975), 44 Ohio St.2d 163,

166. We have written that where an affidavit sufficiently details the underlying circumstances,

gives the reason for crediting the information source, and where probable cause is or has been

found, this Court should not rely on a hyper-technicality to invalidate a warrant. Fisher at ¶7,

citing Karr, 44 Ohio St.2d at 167. Instead, the affidavit should be interpreted in a common sense

manner. Fisher at ¶7.

       {¶11} “[P]robable cause is the existence of circumstances that warrant suspicion.”

(Quotations and citations omitted). Tejada at ¶8. Therefore, “the standard for probable cause

does not require a prima facie showing of criminal activity; rather, the standard requires only a

showing that a probability of criminal activity exists.” (Quotations omitted). Id. See also,

George, 45 Ohio St.3d at 329. Furthermore, courts view the totality of the circumstances in

making probable cause determinations. Illinois v. Gates (1983), 462 U.S. 213, 238. The Gates

court elaborated: “The 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. And

the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for …

conclud[ing] that probable cause existed.” (Internal quotations omitted.) Id. at 238-39.

       {¶12} Beauford first argues that the affiant made misstatements of facts in the affidavit

which must be excised and cannot be used to support a probable cause determination.

Specifically, Beauford challenges the issuing judge’s reliance on paragraph ten of the affidavit, a
                                                5


paragraph describing a 2009 traffic stop during which cocaine, marijuana, and a large sum of

money was seized from him and his brother. Beauford argues that the affiant failed to further

aver that he was only charged with a minor misdemeanor based on evidence discovered during

the stop, that the charge was ultimately dismissed, and that the cash was returned to him.

         {¶13} At the suppression hearing, affiant Detective Michael Schmidt of the Akron

Police Department testified that, at the time he executed the affidavit, he was not aware of the

charges that might have been brought against Beauford as a result of the traffic stop. He further

testified that he had no knowledge of the status of any case arising out of the stop or that the

seized money had been returned. Beauford offered no evidence at the suppression hearing to

rebut the detective’s testimony and establish that the detective was aware of the alleged omitted

facts. Accordingly, the only evidence presented at the suppression hearing demonstrates that

Detective Schmidt did not make any misstatements of fact in paragraph ten of his affidavit.

         {¶14} Beauford next argues that the affidavit presented an insufficient indication of

probable cause to support the issuance of a search warrant because the affidavit consisted of

uncorroborated hearsay statements by a confidential informant.         In paragraph five of his

affidavit, however, Detective Schmidt avers: “Affiant states that the information source listed in

the previous paragraphs of this affidavit has provided the affiant with information concerning the

possession and sale of controlled substances in the Akron, Summit County, Ohio area, which

information has been corroborated by Detective Mike Schmidt #1151 and [Special Agent] Dan

Wehrmeyer. Further, the information source has displayed to specific knowledge as to the uses,

effects and distribution patterns of controlled substances in the Akron, Summit County, Ohio

area.”
                                                 6


       {¶15} In the present case, the confidential informant’s information was corroborated by

both the affiant and another law enforcement officer involved in this case. Detective Schmidt

also averred as to the confidential informant’s reliability based on previous information the

informant had provided regarding specific drug possession and trafficking issues within the

affiant’s investigative jurisdiction.   Viewing the totality of the circumstances, this Court

concludes that sufficient information existed to corroborate the confidential informant’s

information. As a result, we conclude that the trial court properly determined that the issuing

judge had a substantial basis to suspect that a probability of criminal activity existed at

Beauford’s residence. See Tejada at ¶8. Accordingly, the trial court did not err by denying the

motion to suppress. Beauford’s assignment of error is overruled.

                                                III.

       {¶16} Beauford’s sole assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
                                                7


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    DONNA J. CARR
                                                    FOR THE COURT



WHITMORE, J.
CONCURS

BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY


APPEARANCES:

JAMES L. BURDON, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
