[Cite as State v. Rose, 2016-Ohio-5289.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           PREBLE COUNTY




STATE OF OHIO,                                   :

        Plaintiff-Appellee,                      :     CASE NO. CA2015-08-016

                                                 :             OPINION
    - vs -                                                      8/8/2016
                                                 :

JAMES C. ROSE,                                   :

        Defendant-Appellant.                     :



       CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
                           Case No. 15 CR 11753



Martin P. Votel, Preble County Prosecuting Attorney, Gractia S. Manning, Preble County
Courthouse, 101 East Main Street, Eaton, Ohio 45320, for plaintiff-appellee

John H. Forg III, P.O. Box 72, West Chester, Ohio 45069, for defendant-appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, James C. Rose, appeals the decision of the Preble

County Court of Common Pleas denying his motion to suppress, as well as his convictions

involving the illegal manufacture, assembly, and possession of drugs. For the reasons

detailed below, we affirm.

        {¶ 2} The Preble County Sheriff's Department received information that Rose was

operating a meth lab at his residence located at 10164 County Road 335. The complaints
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were referred to Deputy Plaugher who investigated the matter and supplied the factual

information contained in the affidavit to obtain a search warrant for Rose's residence.

        {¶ 3} The       affidavit    contained      information     regarding      Rose's     history     with

methamphetamine, including a prior conviction for aggravated trafficking in drugs. In

addition, Rose had previously been involved in a traffic stop where he was seen leaving

another property that was the focus of a search warrant that revealed the existence of a meth

lab. There was also information supplied by a confidential informant that Rose was known to

be a "big meth cook" in the area.               The confidential informant was aware of Rose's

methamphetamine operation because a relative had been to Rose's residence and had

possibly been providing Rose with pseudoephedrine pills.

        {¶ 4} Acting on this information, Deputy Plaugher and other Preble County Sheriff

Deputies conducted a trash pull on Rose's property. The testimony reflected that deputies

pulled the trash from the end of Rose's driveway and discovered empty blister packs of

pseudoephedrine pills, ammonia, empty cans of paint thinner, paper towels testing positive

for ammonia, lithium battery casings, syringes, and mail addressed to Rose at 10164 County

Road 335. Deputy Plaugher averred that the evidence recovered from the trash pull is

consistent with items used in the methamphetamine manufacturing process.

        {¶ 5} A search warrant was authorized for Rose's residence. A search of the

residence uncovered methamphetamine and evidence of a meth lab leading to the charges

pertinent to this appeal. Rose moved to suppress the evidence seized from his residence

and also moved for a Franks hearing.1 Following an evidentiary hearing on both motions, the

trial court denied Rose's motion to suppress. Thereafter, Rose entered a plea of no contest

and was sentenced to 11 years in prison. Rose now appeals, raising two assignments of



1. We will use the term Franks hearing to refer to Rose's challenge to the validity of the affidavit offered in
support of the search warrant. State v. Sekse, 12th Dist. Preble No. CA2015-07-015, 2016-Ohio-2779, ¶ 9, citing
Franks v. Delaware, 438 U.S. 154, 155, 98 S.Ct. 2674 (1978).
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error for review:

       {¶ 6} Assignment of Error No. 1:

       {¶ 7} THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE EVIDENCE

OBTAINED IN THE SEARCH OF DEFENDANT'S RESIDENCE, AS THE SUPPORTING

AFFIDAVIT SUBMITTED IN SUPPORT [OF] THE SEARCH WARRANT KNOWINGLY OR

RECKLESSLY MISREPRESENTED FACTS NECESSARY TO ESTABLISH PROBABLE

CAUSE.

       {¶ 8} In his first assignment of error, Rose argues the trial court erred by denying his

motion to suppress. Specifically, Rose claims the search of his residence was conducted

without probable cause, as the affidavit offered in support of the search warrant "knowingly or

recklessly" misrepresented the facts. Rose alleges that, absent the inclusion of facts related

to the trash pull, no reasonable magistrate could conclude that Rose was engaged in criminal

activity at his residence. We disagree.

       {¶ 9} Appellate review of a trial court's decision to grant or deny a motion to suppress

is a mixed question of law and fact. State v. Bell, 12th Dist. Clermont No. CA2008-05-044,

2009-Ohio-2335, ¶ 8. Acting as the trier of fact, the trial court is in the best position to resolve

factual questions and evaluate witness credibility. State v. Harsh, 12th Dist. Madison No.

CA2013-07-025, 2014-Ohio-251, ¶ 9. Therefore, when reviewing the denial of a motion to

suppress, a reviewing court is bound to accept the trial court's findings of fact if they are

supported by competent, credible evidence. State v. Durham, 12th Dist. Warren No.

CA2013-03-023, 2013-Ohio-4764, ¶ 14.            "An appellate court, however, independently

reviews the trial court's legal conclusions based on those facts and determines, without

deference to the trial court's decision, whether as a matter of law, the facts satisfy the

appropriate legal standard." Id.

       {¶ 10} "In determining whether probable cause exists for the issuance of a warrant,

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courts employ a 'totality-of-the-circumstances' test, requiring an issuing judge '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.'" State v. Landis, 12th Dist. Butler No. CA2005-10-428, 2006-

Ohio-3538, ¶ 12, quoting State v. George, 45 Ohio St.3d 325 (1989), paragraph one of the

syllabus. Evidence that is obtained in violation of the Fourth Amendment is subject to

exclusion. State v. Quinn, 12th Dist. Butler No. CA2011-06-116, 2012-Ohio-3123, ¶ 12.

       {¶ 11} A police officer establishes probable cause for a search warrant through an

affidavit. State v. Messer, 12th Dist. Clermont No. CA2008-04-039, 2009-Ohio-929, ¶ 13;

Crim.R. 41(C). "To successfully attack the veracity of a facially sufficient search warrant

affidavit, a defendant must show by a preponderance of the evidence that the affiant made a

false statement, either intentionally, or with the reckless disregard for the truth." Bell, 2009-

Ohio-2335 at ¶ 16. Omissions count as false statements if they were "designed to mislead,

or * * * made in reckless disregard of whether they would mislead, the magistrate." Id at ¶ 9;

State v. Rogers, 12th Dist. Butler No. CA2006-03-055, 2007-Ohio-1890, ¶ 46. However, a

search warrant is still valid even though it is based on an affidavit containing false statements

or omissions, unless, after including the omissions, "the affidavit's remaining content is

insufficient to establish probable cause." Bell at ¶ 9.

       {¶ 12} Based on our review of the record, we find the trial court did not err by denying

Rose's motion to suppress. Rose failed to prove that Deputy Plaugher made any false

statement that either intentionally or recklessly disregarded the truth. Rose also failed to

prove that any alleged omission in the affidavit was made in reckless disregard of the truth or

was designed to mislead. Rather, based on the "totality of the circumstances," there was

ample evidence to support a finding of probable cause to issue the search warrant of his

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residence.

       {¶ 13} Despite this, Rose argues the trial court's decision was impro7per due to

perceived inconsistencies and inadequacies in the handling of the trash pull; specifically, the

existence or nonexistence of mail that was found in the trash. In support of this claim, Rose

notes that he burns all of his trash, multiple persons also use the same location to dispose of

their trash, he shares a similar name with his father, and mail addressed to his father and to

other properties was also discovered during the trash pull.2 As a result, Rose argues that

there is no evidence connecting him to the methamphetamine-related instrumentalities

discovered during the trash pull and (1) Deputy Plaugher deliberately omitted that they had

also recovered mail addressed to a separate property, and (2) Deputy Plaugher falsely

testified that he had recovered mail from the trash pull addressed to James C. Rose.

       {¶ 14} Although Rose places much emphasis on the issue of the mail and argues that

the absence of any letter specifically addressed to Rose denies authorities the necessary link

between the meth lab and the adjoining properties, we find the record belies these

assertions. Deputy Plaugher and Detective Schneider testified that they did not find it

significant that a letter addressed to Rose's father was found in the trash. The deputies were

aware that Rose's residence was adjoined by several properties and that his father lived

nearby and shared the same first and last name. However, the deputies also testified that

they took the trash at the end of Rose's driveway and, as far as they knew, the property was

being used as a single-family residence. As explained by Deputy Plaugher:

               A. I found mail addressed to [Rose] in the trash, to James C.
               Rose at 10164 County Road 335. I also found mail in the trash
               that was addressed to his father at 10198 County Road 335 and
               I believe 10196 County Road 335, but that mail didn't have a
               name on it.
                      It did not stand out to me that dad's mail could be in the
               trash. Maybe Chad goes down to the junkyard where the, where
               the mail is addressed to and brings the mail back. It didn't stand

2. Rose also testified that he goes by the name Chad Rose, or formally, J. Chad Rose.
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              out to me that dad's mail was in the trash.

              Q. All right. So can you explain to the Court why, where these
              properties are in relation to each other and why you did not find
              that to be significant?

              A. 10164, if you look at the property, immediately to the west of
              that is 10196 and then immediately to the west of that is 10198.
                      10196 is a vacant residence. By all appearances nobody
              lives there. At home I occasionally get junk mail that is supposed
              to, that's addressed to my neighbor. I didn't find it odd that there
              was trash, or I'm sorry, mail in the trash that belonged to 10196.
              And being that James D. Rose is his father, he lives, or owns, * *
              *, the property, the junkyard two doors down, I didn't find it odd
              that dad's mail was in the trash.

Furthermore, there was additional information already corroborating the fact that Rose lived

at that residence and the trash pull investigation was more focused on finding

methamphetamine and related instrumentalities, rather than pieces of mail. We find that

Rose has simply failed to prove that any statement or perceived omission in Deputy

Plaugher's affidavit was intentionally or recklessly false or designed to mislead.

       {¶ 15} In so doing, we also note that the affidavit contained ample other evidence to

support a finding of probable cause. As previously noted, the affidavit contained information

that Rose had a history with methamphetamine, including criminal charges. There was

information from a confidential informant that stated Rose was a "big meth cook" in the area.

The confidential informant also noted that a relative had been to Rose's residence and had

possibly been providing Rose with pseudoephedrine pills. In addition, the affidavit contained

evidence that just months prior to the issuance of the search warrant, Rose had been seen

leaving a property that contained a meth lab immediately prior to the execution of a search

warrant.

       {¶ 16} Rose issues a number of challenges regarding the other factual information

contained in the Deputy Plaugher's affidavit; however, those arguments are without merit.

The information related to Rose's history with methamphetamine, including a 2012 conviction

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for aggravated trafficking in drugs, was clearly not stale or irrelevant. Additionally, the

information supplied by the confidential informant contained some basis to indicate the

informant was reliable and credible. See, e.g., State v. Thompson, 12th Dist. Butler No.

CA2013-08-158, 2014-Ohio-3380, ¶ 16 ("totality of the circumstances" test used in

determining confidential information reliability and credibility).

       {¶ 17} In conclusion, we find the trial court did not err in denying Rose's motion to

suppress. The issuing judge had a substantial basis for concluding that probable cause

existed based on the information contained in Deputy Plaugher's affidavit and Rose failed to

prove that any statement contained therein was intentionally or recklessly false or designed

to mislead. Therefore, Rose's arguments to the contrary are without merit and his first

assignment of error is overruled.

       {¶ 18} Assignment of Error No. 2:

       {¶ 19} THE TRIAL COURT ERRED IN DENYING THE MOTION TO DISMISS THE

SUPERSEDING INDICTMENT, AS THE DESTRUCTION OF EXCULPATORY EVIDENCE

DEPRIVED DEFENDANT OF DUE PROCESS.

       {¶ 20} In his second assignment of error, Rose claims the trial court erred by denying

his motion to dismiss because the state destroyed materially exculpatory evidence. We

again disagree.

       {¶ 21} "Depending on the nature of the evidence, different tests are applied to

determine whether the state's failure to preserve evidence amounts to the level of a due

process violation." State v. Gatliff, 12th Dist. Clermont No. CA2012-06-045, 2013-Ohio-2862,

¶ 40, citing State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 73-77. The state's

failure to preserve "materially exculpatory" evidence, regardless of whether such failure was

done in good faith or bad faith, violates due process. California v. Trombetta, 467 U.S. 479,

489, 104 S.Ct. 2528 (1984). Evidence is constitutionally material when it possesses "an

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exculpatory value that was apparent before the evidence was destroyed, and [is] of such a

nature that the defendant would be unable to obtain comparable evidence by other

reasonably available means." Powell at ¶ 74. The defendant bears the burden to show that

the evidence was materially exculpatory. Id.

        {¶ 22} "[A] different rule is used when the evidence is merely 'potentially useful.'" Id.

at ¶ 41, quoting State v. Geeslin, 116 Ohio St .3d 252, 2007-Ohio-5239 at ¶ 910. "'Unless a

criminal defendant can show bad faith on the part of the police, failure to preserve potentially

useful evidence does not constitute a denial of due process of law.'" State v. Hamilton, 12th

Dist. Clinton No. CA2014-07-010, 2015-Ohio-1704, ¶ 11, quoting Arizona v. Youngblood, 488

U.S. 51, 58, 109 S.Ct. 333 (1988). Bad faith implies more than bad judgment or negligence,

rather "[i]t imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a

known duty through some ulterior motive or ill will partaking of the nature of fraud." Powell at

¶ 81.

        {¶ 23} After review, we conclude that Rose's due process rights were not violated

when the state failed to preserve the mail seized from the trash pull. As an initial matter, we

disagree with Rose's assertion that the mail was materially exculpatory. In his brief, Rose

argues that the items taken from the trash pull were "material to the issue of probable cause."

However, neither the letters nor any of the remaining items taken from the trash possessed

any exculpatory value. As noted above, the evidence gathered from the trash pull was only

one piece of evidence used to establish the probable cause necessary to support the

issuance of the search warrant. The mail could not be used to establish Rose's guilt or

innocence regarding the manufacture of methamphetamine. See State v. Geeslin, 116 Ohio

St. 3d 252, 2007-Ohio-5239, ¶ 13.

        {¶ 24} Because the items did not provide any materially exculpatory evidence, we

now address whether the items would be potentially useful and whether the evidence was

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destroyed in bad faith. Gatliff, 2013-Ohio-2862 at ¶ 43. However, even assuming that the

items taken from the trash pull would be potentially useful, Rose failed to prove that any

evidence was destroyed in bad faith. Rather, the record reflects that Deputy Plaugher and

Detective Schneider conducted the trash pull, focusing primarily on the existence of

methamphetamine-related items.

       {¶ 25} Although the mail was discarded, Deputy Schneider testified that it was "just

not common practice for us to save the trash from the trash pull. We photograph it and we

throw it away." The evidence presented by Deputy Plaugher and Detective Schneider

supports the position that the items offered limited, if any, evidentiary value to the case and it

was standard practice to discard the relevant items. Moreover, as noted above, the letters

were only one piece of evidence used in the probable cause determination. Rose has not

shown the state acted in bad faith necessary to support his allegations that he was deprived

of due process. Accordingly, we find the trial court did not err in denying Rose's motion to

dismiss based on alleged due process violations. Rose's second assignment of error is

similarly without merit and overruled.

       {¶ 26} Judgment affirmed.


       PIPER, P.J., and HENDRICKSON, J., concur.




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