[Cite as State v. Young, 2015-Ohio-398.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                       ERIE COUNTY


State of Ohio                                   Court of Appeals No. E-13-011

        Appellee                                Trial Court No. 2011-CR-244

v.

James M. Young                                  DECISION AND JUDGMENT

        Appellant                               Decided: January 30, 2015

                                           *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, Mary Ann
        Barylski and Frank Romeo Zeleznikar, Assistant Prosecuting
        Attorneys, for appellee.

        Derek A. Farmer, for appellant.

                                           *****

        JENSEN, J.

        {¶ 1} Following a jury trial, defendant-appellant, James M. Young, appeals from

the February 28, 2013 judgment of the Erie County Court of Common Pleas,

memorializing his convictions on various drugs and weapons charges, and the
accompanying decisions of the trial court rendered during the course of the proceedings.

For the reasons that follow, we find Young’s first assignment of error well-taken and we

reverse the trial court’s judgment.

                                      I. Background

       {¶ 2} On the morning of June 4, 2011, Agent Dennis Rulli, a lead border patrol

agent with the U.S. Customs and Border Protection agency, received a call from a

confidential informant (“CI”) indicating that Young and Anthony Henson were at

Young’s residence, 508 East Jefferson Street in Sandusky, Ohio, cooking crack cocaine.

The CI said that they would be leaving the house and traveling to Farwell Street with an

ounce or two of crack cocaine. Rulli contacted Lieutenant John Orzech, of the Sandusky

Police Department, to report this information. Orzech was not on duty at the time, but he

arranged to have Sergeant Danny Lewis contact Rulli. When Rulli and Lewis spoke, they

made plans to conduct surveillance of Young’s home. Lewis arrived first in his squad

car. When Rulli arrived in an unmarked vehicle, Lewis moved away so as not to be

detected.

       {¶ 3} Rulli observed a black male leave the East Jefferson Street residence on a

bicycle. He informed Lewis who headed in the direction of the bicyclist. Soon after,

Young and Henson left the home in a black Hummer. Young drove and Henson got in

the passenger side. Rulli informed Lewis and began to follow the vehicle. Lewis caught

up and resumed following Young while Rulli returned to East Jefferson Street.




2.
       {¶ 4} As Lewis followed Young’s vehicle, he observed that the county sticker and

the top portion of his license plate were partially obstructed, and he found the validation

sticker difficult to read. Lewis believed this to be a violation of state and local laws. As

the vehicle turned onto Farwell Street, Lewis activated his lights and initiated a traffic

stop. He asked to see Young’s identification. Young did not have his license with him

and Lewis observed that Young appeared nervous. He was allegedly shaking and

mumbling. Lewis called for the K-9 unit to be dispatched.

       {¶ 5} The K-9 unit arrived. Justice, the drug-sniffing dog, alerted to the presence

of drugs. Lewis asked Young and Henson if they had drugs with them and Henson

handed over a plastic baggie of suspected crack cocaine. The crack cocaine was

contained within a cupcake wrapper. Lewis had conducted a 2006 investigation in which

Young sold drugs packaged in cupcake wrappers. Lewis searched the vehicle but found

no other drugs or contraband. He arrested Henson. He also arrested Young for

permitting drug use. He contacted Orzech to advise him of the events.

       {¶ 6} Lewis left the place of the stop and returned to East Jefferson Street. There

he found Rulli speaking with a woman named Jenny Bailey who was there for a short

time to speak with Young’s mother, Lutricia Bradley. Rulli stayed with Bailey, who he

placed in the back of Lewis’ squad car, while Lewis and other officers went to the door of

the residence. Lewis knocked on the door. He claims that he heard footsteps and running

water and heard someone say “it’s the police.” Allegedly concerned that evidence was

being destroyed, he and the other officers forced entry into the home with guns drawn.




3.
         {¶ 7} Inside the home, Lewis saw Bradley shoving what appeared to be crack

cocaine down the kitchen sink with a butter knife. Lewis instructed Bradley to move

away from the sink. She did not comply so he went to the sink, turned off the water, and

directed Bradley to sit at the kitchen table. Chad Young, either Young’s brother or son (it

is unclear from the record), was also in the residence, running towards the back of the

home. He complied with the officers’ orders to return to the kitchen. His girlfriend,

Keisha Hargrove, was in a bedroom and she, too, complied with orders to come to the

kitchen. Her minor son was also present. Lewis did not check the remaining rooms in

the house. He asked Bradley for permission to search the home. She refused.

         {¶ 8} Orzech arrived and Rulli entered the residence. Orzech and Lewis left to

obtain a search warrant while Rulli and other officers stayed with the occupants. Orzech,

with information obtained from Lewis, drafted the affidavit for search warrant and Lewis

prepared the cover sheets.

         {¶ 9} In his affidavit, Orzech described that in 2006, with assistance from a CI,1

Lewis and other officers arranged multiple controlled drug buys from Young and a

female associate. In the course of that investigation, they executed a search warrant that

led to Young’s arrest on charges of trafficking in marijuana, trafficking in cocaine,

trafficking in crack cocaine, possession of cocaine, and possession of crack cocaine.

Young allegedly pled to some of these charges and served some amount of prison time.



1
    The 2006 investigation did not involve the same CI as the present case.




4.
       {¶ 10} Orzech then detailed the June 4, 2011 events. He recounted that the CI had

told Rulli that Young and Henson were cooking crack cocaine and would be leaving 508

East Jefferson Street with an ounce or two of crack cocaine, traveling to the Farwell

Street address. He described that based on this information, Lewis and Rulli set up

surveillance at the East Jefferson Street address. Young and Henson left the residence in

a black Hummer, Lewis followed, and he pulled the vehicle over for obstructed plates

violations as it turned onto Farwell Street. He indicated that the K-9 unit arrived and

alerted to the presence of drugs in the vehicle, and that a baggy of suspected crack

cocaine was found in Henson’s pants pocket.

       {¶ 11} Orzech then detailed what was observed by the officers upon their

warrantless entry into the home. He stated that the K-9 unit arrived at East Jefferson

Street and conducted an open-air search of the vehicles there, alerting to a white Denali

registered to Newman’s Motors—a dealership allegedly frequented by Young.

According to the affidavit, Young told Lewis that he resides at 508 East Jefferson Street.

       {¶ 12} In his affidavit, Orzech attested that he knows the CI to be reliable and to

have assisted the Sandusky Police Department with investigations leading to the arrest

and convictions of at least five individuals for drug-related offenses, more than 15 drug

buys, and the recovery of more than 10 ounces of crack cocaine, money, and other

paraphernalia.

       {¶ 13} Orzech took the warrant application to a judge while Lewis returned to the

residence. Orzech telephoned Lewis after obtaining a signature on the warrant, and




5.
Lewis and the other officers began searching the home. In the kitchen they found crack

cocaine in the sink. There was a Mason jar next to the sink that purportedly contained

crack cocaine. Rubber gloves and pipes from the sink were found to contain crack

cocaine and there were cupcake wrappers. In Chad Young’s bedroom there was a

thermometer, a scale, a razor blade with residue, and a round of ammunition, but no

weapon. His identification was found in an end table drawer. In the southeast bedroom,

which Bradley identified as Young’s bedroom, they found cocaine, a gun, scales, plastic

bags, cupcake wrappers, spoons, and paraphernalia. There was also some cash, jewelry,

and watches, various mail and other documents with Young’s name on it, manuals to a

vehicle, and pictures of Young standing outside the home. Officers found several guns in

the back of the residence by the laundry room. Nothing was found in Bradley’s bedroom.

       {¶ 14} Young was indicted on ten counts of having weapons under disability,

under R.C. 2923.13; permitting drug abuse, under R.C. 2925.13; complicity to commit

trafficking in crack cocaine, under R.C. 2925.03 and 2923.02; possession of cocaine,

under R.C. 2925.11; and, later, complicity to commit interference with forfeitable

property, under R.C. 2981.07. In a motion dated October 13, 2011, he moved the court to

suppress evidence and to suppress his arrest. He claimed that the state lacked reasonable

articulable suspicion for the traffic stop, that he was unlawfully detained pending arrival

of the K-9 unit, that the state lacked probable cause to obtain the warrant to search his

home, that there did not exist exigent circumstances to justify the warrantless entry into

the residence, and that there was no probable cause for his arrest. The state opposed the




6.
motion and the trial court conducted a two-day hearing at which Rulli, Lewis, Orzech,

and Young testified.

       {¶ 15} The trial court denied Young’s motion to suppress on April 25, 2012, and

on January 15, 2013, it adopted findings of fact and conclusions of law submitted by the

state. It also cited State v. Coleman, 12th Dist. Fayette No. CA2011-09-020, 2012-Ohio-

3630, in support of its decision, explaining that under that authority, the initial stop of

Young’s vehicle was proper.

       {¶ 16} The matter ultimately proceeded to a jury trial. The jury convicted Young

of all charges. He was sentenced to a net prison term of 96 months. He filed a timely

notice of appeal and assigns the following errors for our review:

              I. Whether the initial stop of Mr. Young’s vehicle, along with his

       arrest and subsequent search of his residence constitute violations of the

       Fourth Amendment to the United States Constitution and Article I, Section

       14 of the Ohio Constitution.

              II. Whether Mr. Young’s Convictions are supported by Insufficient

       evidence and are against the manifest weight of the Evidence in violation of

       the Fourteenth Amendment to the United States Constitution and it [sic]

       Ohio counterpart.

              III. Whether the trial court committed error when it failed to sever

       Appellant’s trial from his co-defendant’s and when itadmitted [sic] hearsay




7.
       testimony in violation of Ohio Rule of Evidence 801(D)(2) and the Sixth

       Amendment to the United States Constitution.

              IV. Whether Mr. Young’s Sixth Amendment Right of Confrontation

       was violated where the trial court permitted a non-testifying informant’s

       statement be used as substantive evidence [sic].

              V. Whether the trial court erred when it permitted “other

       act”evidence [sic] of prior conviction and did not limit testimony

       concerning the details of a prior conviction consistent with Ohio Rule of

       Evidence 403 (B) and the Fourteenth Amendment to the United States

       Constitution.

              VI. Whether the trial court erred when it impermissibly confronted

       defense witness in front of the jury when the witness Invoked his Fifth

       Amendment [sic] against self-incrimination, in violation of the Fourteenth

       Amendment to the United States Constitution.

       {¶ 17} For the reasons that follow, we find Young’s first assignment of error well-

taken, thereby obviating the need to address the remaining assignments of error.

                                  II. Standard of Review

       {¶ 18} Appellate review of a motion to suppress is a mixed question of law and

fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. On a

motion to suppress, the trial court assumes the role of finder of fact and, as such, is in the

best position to determine witness credibility and to resolve factual disputes. State v.




8.
Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, ¶ 7, citing State v.

Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). On appeal, we must accept the

trial court’s factual findings as true if supported by competent and credible evidence.

State v. Durnwald, 163 Ohio App.3d 361, 2005-Ohio-4867, 837 N.E.2d 1234, ¶ 28 (6th

Dist.). We then independently determine, without deference to the trial court’s

conclusion, whether the facts meet the appropriate legal standard. State v. Jones-

Bateman, 6th Dist. Wood No. WD-11-074, 2013-Ohio-4739, ¶ 9, citing State v. Claytor,

85 Ohio App.3d 623, 626, 620 N.E.2d 906 (4th Dist.1993).

                                        III. Analysis

       {¶ 19} In his first assignment of error, Young argues that the initial stop of his

vehicle, his detention pending arrival of the K-9 unit, his arrest, the warrantless entry into

the East Jefferson Street apartment, and the search of the residence violated his rights

under the Fourth Amendment to the United States Constitution and Article I, Section 14

of the Ohio Constitution, thus the trial court erred in denying his motion to suppress. We

address each of these claims in turn. In doing so, we rely on the information contained in

the affidavit for search warrant and the testimony and evidence presented at the

suppression hearing.

                                    A. The Traffic Stop

       {¶ 20} Lewis testified that he stopped Young’s vehicle because his license plate

was obstructed. He said that the county sticker was blocked, the words across the top of

the plate were obstructed by a silver eagle bracket, and he found part of the validation




9.
sticker difficult to read because it was placed partially over one of the numbers on the

license. He understood that the Ohio Revised Code and a city ordinance required these

parts of the plate be visible at all times, so he initiated the stop. Lewis conceded on

cross-examination that once he stopped the vehicle and exited the police cruiser, he did

not try to read Young’s license plate. He indicated that he issued a written warning for

the obstructed plates violation, but did not present it to Young until after he was arrested.

       {¶ 21} To legitimately effectuate a traffic stop, an officer must have a reasonable

and articulable suspicion of criminal activity. State v. Hageman, 180 Ohio App.3d 640,

2009-Ohio-169, 906 N.E.2d 1158, ¶ 11 (6th Dist.). Once the officer has initiated the

stop, he or she may detain the vehicle no longer than is necessary to carry out the purpose

of the stop which typically amounts to “a time period sufficient to issue a ticket or a

warning.” State v. Kelly, 188 Ohio App.3d 842, 2010-Ohio-3560, 937 N.E.2d 149, ¶ 25

(12th Dist.).

       {¶ 22} R.C. 4503.21(A) provides that:

                No person who is the owner or operator of a motor vehicle shall fail

       to display in plain view on the front and rear of the motor vehicle the

       distinctive number and registration mark, including any county

       identification sticker and any validation sticker * * *. All license plates

       shall be securely fastened so as not to swing, and shall not be covered by

       any material that obstructs their visibility.




10.
       {¶ 23} Photographs of the license plate were admitted as exhibits during the

suppression hearing. Those photographs demonstrate that the top portion of the license

plate that reads “Ohio” and, under it, “Birthplace of Aviation,” was covered by an eagle

emblem on the decorative bracket bordering Young’s license plate. The photos also

demonstrate that the bottom half of the county sticker was obscured by that bracket.

       {¶ 24} In support of his position that Lewis lacked reasonable, articulable

suspicion to initiate the stop, Young cites State v. Brooks, 11th Dist. Lake No. 2005-L-

200, 2007-Ohio-344. In Brooks, the officer stopped defendant’s vehicle because the rear

bracket made it impossible to see the county and validation sticker on his license plate.

Id. at ¶ 6. When shown a photo of the plate, the officer indicated that he could partially

read the numbers, but emphasized that he could not read them at all at the time he

initiated the traffic stop. Id. at ¶ 18. The trial court found that the stickers were partially

obstructed—“less than one-quarter of the tags were covered by the frame.” Id. at ¶ 34.

The appellate court considered whether R.C. 4503.21 strictly prohibits any obstruction. It

recognized that the purpose of the statute is to ensure that license plates are “visible to

law enforcement personnel and others who may have reason to note the number for

identification purposes.” Id. at ¶ 35, quoting State v. Durfee, 11th Dist. Lake No. 96-L-

198, 199, 1998 WL 156857, *8 (Mar. 6, 1998). It interpreted that to violate the statute,

one must be unable to read the numbers at all. Id. at ¶ 36. Because the photos admitted

at the suppression hearing showed that the numbers could, in fact, be read, the court




11.
concluded that the officer lacked probable cause to stop the defendant’s vehicle. Id. at

¶ 37, 39.

       {¶ 25} The state relies on State v. Phillips, 2d Dist. Montgomery No. 22918, 2009-

Ohio-3519, and State v. Craze, 5th Dist. Ashland No. 09COA 017, 2010-Ohio-812. In

Phillips, there was a temporary plate on defendant’s car that had a tinted cover over it

which was further obstructed by dirt and salt, rendering the officer unable to read the

plate. Id. at ¶ 3. Upon stopping and approaching the vehicle, the officer was ultimately

able to read the plate. Id. at ¶ 4. The defendant argued that because the officer could

ultimately read the plate, he lacked reasonable, articulable suspicion to justify stopping

and detaining him. Id. at ¶ 7. The court disagreed. It also distinguished a number of

cases where other Ohio courts had found similar stops to be unjustified. In Craze, the

officer could not see the expiration date on the validation sticker until she walked up to

the plate and pointed her flashlight on it. The court held that the condition of the plate

violated the statute and that the officer properly initiated the stop.

       {¶ 26} From the photograph and the testimony presented at the suppression

hearing, it is apparent that, unlike Brooks, the county sticker on Young’s vehicle was

obstructed to the point of being unreadable. Because the obscured county sticker violated

R.C. 4503.21, we find that the initial stop of Young’s vehicle was proper.

                      B. Detention Pending Arrival of the K-9 Unit

       {¶ 27} Despite our finding that reasonable, articulable suspicion existed to support

the initial stop of the vehicle for the R.C. 4503.21 violation, there are problems with the




12.
traffic stop. Specifically, Lewis lacked reasonable articulable suspicion to detain Young

for the amount of time that it took the drug-detecting dog to arrive.

       {¶ 28} After checking Young’s information in LEADS, Lewis asked him if there

was anything illegal in the vehicle. Young replied that there was not. He asked

permission to search the vehicle, and Young refused. Lewis said that Young and Henson

appeared nervous and that he could literally see Young’s heart pounding in his chest.

Lewis decided to call the K-9 unit to the scene. He testified that it took 15-25 minutes for

the unit to arrive. Young testified that it took one and one-half to two hours. A review of

the recording of the traffic stop, which was marked as an exhibit, reflects that Young’s

vehicle was pulled over at 12:01 p.m. and that the K-9 unit arrived at 12:26 p.m.

       {¶ 29} A K-9 sniff is not a search within the meaning of the Fourth Amendment,

thus police are not required to have reasonable suspicion that a car contains drugs prior to

subjecting a lawfully detained vehicle to a K-9 sniff. State v. Heard, 2d Dist.

Montgomery No. 19323, 2003-Ohio-1047, ¶ 13. “However, police must have reasonable

suspicion that a vehicle contains drugs in order to detain a suspect while a drug sniffing

dog is brought to the scene.” Id., citing State v. Kerns, 2d Dist. Montgomery No. 18439,

2001 WL 257837 (Mar. 16, 2001).

       {¶ 30} In State v. Brown, 183 Ohio App.3d 337, 2009-Ohio-3804, 916 N.E.2d

1138 (6th Dist.), we recognized that “the scope of a detention must be carefully tailored

to its underlying justification * * * and last no longer than is necessary to effectuate the

purpose of the stop.” (Internal citations and quotations omitted.) Id. at ¶ 18. We




13.
explained that “an officer should, on average, have completed the necessary checks and

be ready to issue a traffic citation in approximately 15 minutes.” Id. at ¶ 23, citing State

v. Johnson, 6th Dist. No. L-06-1035, 2007-Ohio-3961, ¶ 10; State v. Meza, 6th Dist. No.

L-03-1223, 2005-Ohio-1221, ¶ 9. In that case, we held that the officer impermissibly

expanded the length and scope and prolonged the traffic stop. Id. at ¶ 24.

       {¶ 31} Here, Lewis did not issue a citation during the 25 minutes they waited for

the K-9 unit. He testified that he ultimately issued only a written warning which he did

not provide to Young until he was arrested. Because the detention was longer than

necessary to issue a traffic citation or written warning, we find that Lewis impermissibly

expanded the length and scope of the traffic search.

       {¶ 32} The state argues that Young and Henson appeared very nervous and that

Young was mumbling and speaking in broken sentences, thereby arousing reasonable,

articulable suspicion justifying Lewis’ decision to prolong detention pending arrival of

the K-9 unit. However, it is not uncommon for a person to become nervous after being

pulled over by the police. We, therefore, assign little significance to this fact. See State

v. Taylor, 138 Ohio App.3d 139, 147, 740 N.E.2d 704 (2d Dist.2000) (“[Defendant’s]

nervousness contributes little toward a reasonable and articulable suspicion that he or his

passengers were engaged in drug trafficking.”).

       {¶ 33} We agree with Young that he was unlawfully detained pending arrival of

the K-9 unit.




14.
                            C. Young’s Arrest and Search

       {¶ 34} Once the K-9 unit arrived, the drug-detecting dog, Justice, quickly alerted

to the presence of drugs in the vehicle. At that point, Henson turned over approximately

a half-ounce of crack cocaine, wrapped in a cupcake wrapper, retrieved from his front

pants pocket. He was arrested. Despite a subsequent search of the vehicle that

uncovered no additional drugs or other contraband, Young was also arrested and charged

with permitting drug abuse. He was also patted down, at which time he was found to be

carrying $1,280. Young argues that his arrest and pat down were improper because the

officers lacked probable cause to believe that Young had committed any crime. The state

argues that between the tip from the CI, Henson’s possession of drugs, the $1,280 found

on Young when he was searched, and the fact that the crack cocaine Henson was carrying

was packaged in a cupcake wrapper—purportedly Young’s modus operandi—there

existed probable cause to arrest Young. It contends that Lewis had probable cause to

believe that Young knew that Henson was carrying drugs, that a reasonable police officer

would believe that Young sold it to Henson, and that Young was involved in other drug-

related felonies.

       {¶ 35} Probable cause to conduct a warrantless arrest exists when police have, at

the moment of arrest, knowledge of facts and circumstances grounded in reasonably

trustworthy information to warrant a belief by a prudent person that an offense has been

committed by the person to be arrested. State v. Graves, 173 Ohio App.3d 526, 2007-

Ohio-4904, 879 N.E.2d 239, ¶ 13 (6th Dist.), citing Beck v. Ohio, 379 U.S. 89, 91,




15.
85 S.Ct. 223, 13 L.Ed.2d 142 (1964). R.C. 2925.13(A) provides that “[n]o person who is

the owner, operator, or person in charge of a * * * vehicle * * * shall knowingly permit

the vehicle to be used for the commission of a felony drug abuse offense.”

         {¶ 36} As previously discussed, the discovery of the drugs packaged in cupcake

wrappers was made pursuant to an unlawful stop and unlawfully-prolonged detention.

Moreover, the state cites nothing in the transcript to support its assertion that Young was

aware that Henson had drugs concealed in his front pants pocket. We agree with Young

that the officers lacked probable cause to arrest him.

                        D. The Warrantless Entry into the Home

         {¶ 37} After Young and Henson were arrested, Lewis returned to the East

Jefferson Street apartment where he and the other officers and agents on the scene

intended to secure the premises. In doing so, they decided to confront the occupants.

They twice knocked on the door and, after allegedly hearing water running, footsteps, and

someone call out, “it’s the police,” the officers forcibly entered the apartment with guns

drawn.

         {¶ 38} Absent exigent circumstances, officers may not enter a home without

voluntary consent or a judicially-sanctioned warrant. Wauseon v. Leveck, 6th Dist.

Fulton No. F-13-020, 2014-Ohio-3360, ¶ 10. It has long been recognized, however, that

the prevention of imminent destruction of evidence can constitute an exigent

circumstance. State v. Stacey, 6th Dist. Ottawa No. OT-13-002, 2013-Ohio-4422, ¶ 33,

citing Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650




16.
(2006). “[T]he burden is on the government to demonstrate exigent circumstances that

overcome the presumption of unreasonableness that attaches to all warrantless home

entries.” State v. Cal, 6th Dist. Ottawa No. OT-03-025, 2004-Ohio-1329, ¶ 11, quoting

Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984).

       {¶ 39} The U.S. Supreme Court explained in Kentucky v. King, 131 S.Ct. 1849,

1858, 179 L.Ed.2d 865 (2011):

              [W]arrantless searches are allowed when the circumstances make it

       reasonable, within the meaning of the Fourth Amendment, to dispense with

       the warrant requirement. Therefore, * * * the exigent circumstances rule

       justifies a warrantless search when the conduct of the police preceding the

       exigency is reasonable in the same sense. Where * * * the police did not

       create the exigency by engaging or threatening to engage in conduct that

       violates the Fourth Amendment, warrantless entry to prevent the

       destruction of evidence is reasonable and thus allowed.

Where, however, the police create their own exigency by engaging in conduct that

violates the Fourth Amendment, warrantless entry into a home will not be condoned.

Stacey at ¶ 34.

       {¶ 40} The state argues that officers properly entered the apartment before

obtaining a warrant because (1) the tip from the CI was corroborated when Lewis stopped

Young and found crack cocaine on Henson; and (2) it was possible that the occupants

would learn—perhaps from Bailey—that Young and Henson had been arrested, leading




17.
them to destroy evidence. It claims that the sounds the officers heard coming from the

apartment were consistent with that concern.

       {¶ 41} Young argues that given the design of the house, Lewis could not have

heard what he claimed to hear. He claims that a bottle cap found in the sink, which was

photographed, was not filled with water, thus refuting Lewis’ claim that the water was

running. He also complains that Lewis did not announce himself as a police officer, there

was no controlled drug buy, Lewis did not observe any illegal activity, and there was no

smell of drugs emanating from the apartment.

       {¶ 42} Lewis conceded at the suppression hearing that the information provided

by the CI indicated only that Young and Henson were cooking crack cocaine in the

apartment. He or she made no mention of additional participants or other drugs that

would be found in the residence. The officers were obviously aware that Young and

Henson had been arrested and were not inside the apartment cooking crack cocaine.

Lewis also conceded that despite his concern that someone in the house may be

destroying evidence, he did not conduct a protective sweep of the entire house. And, as

we have already explained, Young and Henson were unlawfully detained while awaiting

arrival of the K-9 unit, thus the fact that Henson was found to be carrying drugs should

play no role in legitimizing the officers’ conduct. As to the running water and the

footsteps, on remand after appeal to the U.S. Supreme Court, the Supreme Court of

Kentucky in King v. Commonwealth, 386 S.W.3d 119, 122 (Ky. 2012), held that

“ordinary household sounds” did not justify officers’ warrantless entry into a home. See




18.
also State v. Burks, 8th Dist. Cuyahoga No. 92736, 2010-Ohio-658, ¶ 12, 16 (finding that

exigent circumstances did not exist despite officers hearing water running and toilet

flushing).

       {¶ 43} For these reasons, we find the warrantless entry into the East Jefferson

Street home violated the Fourth Amendment.

                                 E. The Search Warrant

       {¶ 44} Finally, Young challenges the sufficiency of the affidavit in support of the

application for search warrant. He complains that it does not indicate at what time the CI

contacted Rulli, it omits any mention of how the CI became aware of the information, the

search warrant is too broad in that it sought, inter alia, firearms and paraphernalia when

those items were not referenced in the affidavit for search warrant, and the affiant,

Orzech, lacked personal knowledge given that the information included in the affidavit

had been supplied by Lewis.

       {¶ 45} Before the issuance of a search warrant, probable cause must be

demonstrated in an affidavit or oath. The Fourth Amendment to the U.S. Constitution;

Ohio Constitution, Article I, Section 14; Crim.R. 41(C). On appeal, we must “determine

whether or not the affidavit provided the issuing magistrate with a substantial basis for

determining the existence of probable cause.” State v. Rodriguez, 64 Ohio App.3d 183,

187, 580 N.E.2d 1127 (6th Dist.1989), citing Illinois v. Gates, 462 U.S. 213, 239, 103

S.Ct. 2317, 76 L.Ed.2d 527 (1983). The focus of a probable cause determination is “the

totality of the circumstances presented in the affidavit, not each component standing




19.
alone.” State v. Brooks, 6th Dist. Sandusky No. S-87-64, 1988 WL 134181, *2 (Dec. 16,

1988), citing Gates at 230-34.

       {¶ 46} Probable cause must be determined as of the date the warrant is requested,

thus the facts presented must be relatively close in time to the date of the affidavit to be

of value in making the probable cause determination. State v. Sautter, 6th Dist. Lucas

No. L-88-324, 1989 WL 90630, *3 (Aug. 11, 1989). Whether facts are “too stale” to be

of probative value must be decided on a case-by-case basis. Id. In State v. Goble, 2014-

Ohio-3967, 20 N.E.3d 280, ¶ 11 (6th Dist.), for instance, we found that a three-year-old

incident was too stale to have been of value in making a probable cause determination.

The Sandusky Police Department’s 2006 investigation into Young’s possession and

trafficking of drugs falls into the category of information that is too stale to rely upon in

considering whether probable cause exists to issue a search warrant. See also State v.

Williams, 173 Ohio App.3d 119, 2007-Ohio-4472, 877 N.E.2d 717, ¶ 16 (6th Dist.)

(holding that evidence seized during investigation two years earlier was not verification

that current drug activity was afoot).

       {¶ 47} Turning to the information from the CI, the Ohio Supreme Court has held

that although a magistrate may consider information provided by hearsay statements of a

CI, it may do so only if there is a substantial basis for crediting the statements. State v.

Gill, 49 Ohio St.2d 177, 179, 390 N.E.2d 693 (1977). “[T]hat substantial basis must

include (1) information about the facts upon which the informant based his allegations of

criminal activity, and (2) some of the underlying circumstances from which the officer




20.
concluded that the informant was credible or his information reliable.” (Internal

quotations and citations omitted.) Id.

       {¶ 48} Although the affidavit submitted by Orzech details instances which tend to

show that the CI is credible, there is nothing in the affidavit detailing the source of the

CI’s information that Young and Henson would be cooking crack cocaine. Without these

details, “[t]he magistrate in this situation would not know whether the informant’s

conclusion rested upon first-hand knowledge gained through his own observation,

whether it rested upon information given the informant by a third person and, if so, how

that person, even if reliable, acquired his information, or, whether the informant’s

conclusion rested upon rumor or gossip circulating in the neighborhood.” State v.

Graddy, 55 Ohio St.2d 132, 139, 378 N.E.2d 723 (1978). Because the affidavit lacks

these details, the information from the CI was improperly considered by the magistrate in

making a probable cause determination.

       {¶ 49} The remaining information in the affidavit was based on what the officers

perceived when they made their warrantless entry into the home which, as explained

previously, may not be considered.

       {¶ 50} We, therefore, agree with Young that there existed no probable cause to

issue the search warrant.




21.
                                F. Good Faith Exception

       {¶ 51} In some situations, a “good faith exception” exists to the general rule

excluding evidence obtained pursuant to an invalid search warrant. Goble, 2014-Ohio-

3967, 20 N.E.3d 280 at ¶ 17. As we explained in Goble, this exception provides:

              “Where evidence is obtained by police acting in objectively

       reasonable reliance on a search warrant issued by a detached and neutral

       magistrate or judge, which is later discovered to be unsupported by

       probable cause, the evidence seized remains admissible.” In determining

       whether an officer’s reliance was “objectively reasonable,” we consider

       whether a reasonably well-trained officer would have known that the search

       was illegal, despite the issuance of the warrant. The state bears the burden

       of proof. (Internal citations omitted.) Id.

       {¶ 52} Here, given the number of missteps that occurred in obtaining the evidence

at issue, we find that a reasonably well-trained officer would have known the search was

illegal. We, therefore, suppress Young’s arrest, as well as the evidence obtained as a

result of the arrest, the unlawfully-prolonged detention during the traffic stop, the

warrantless entry into the residence, and the wrongfully-issued search warrant. Because

of this conclusion, we need not address Young’s remaining assignments of error.




22.
                                     IV. Conclusion

       {¶ 53} We find Young’s first assignment of error well-taken and we find that

assignment of error dispositive of his appeal. We reverse the April 25, 2012 and

January15, 2013 judgments of the Erie County Court of Common Pleas denying his

motion to suppress, as well as the February 18, 2013 judgment of his conviction and

sentence, and we remand this matter to the trial court for proceedings consistent with this

decision. The state is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                      Judgments reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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