[Cite as State v. Maniaci, 2017-Ohio-8270.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 9-17-14

        v.

WILLIAM ANTHONY MANIACI, II,                              OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 2016 CR 0429

                                      Judgment Affirmed

                            Date of Decision: October 23, 2017




APPEARANCES:

        Nathan D. Witkin for Appellant

        Kevin P. Collins for Appellee
Case No. 9-17-14



SHAW, J.

       {¶1} Defendant-appellant, William A. Maniaci, II (“Maniaci”), appeals the

April 6, 2017 judgment of the Marion County Court of Common Pleas, General

Division, journalizing his plea of no contest to Possession of Cocaine, a felony of

the first degree, with a Major Drug Offender specification, and to Possession of

Heroin, a felony of the first degree, with a Major Drug Offender specification. The

trial court sentenced Maniaci to a mandatory eleven years in prison on each count

and ordered the prison terms to be served concurrently.

       {¶2} On August 11, 2016, members of the MARMET drug task force sought

and obtained an anticipatory search warrant for 860 Kibbey Drive, Apartment C,

located in Marion, Ohio, where Maniaci resided with his girlfriend. Later that day,

Maniaci was arrested while attempting to sell a quarter ounce of cocaine to a

confidential informant. The search warrant for the apartment was subsequently

executed and a large amount of cocaine and heroin was discovered in the home.

       {¶3} On August 25, 2016, the Marion County Grand Jury returned a “Joint

Indictment” against Maniaci and his girlfriend. Specifically, the indictment alleged

that Maniaci committed the following offenses: Count One: Possession of Cocaine,

in violation of R.C. 2925.11(A)/(C)(4), a felony of the first degree, with a Major

Drug Offender specification, in violation of R.C. 2941.1410; and Count Two:

Possession of Heroin, in violation of R.C. 2925.11(A)/(C)(6), a felony of the first

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Case No. 9-17-14


degree, with a Major Drug Offender specification, in violation of R.C. 2941.1410.

The indictment also included forfeiture specifications attached to Counts One and

Two regarding a gun safe, an AR15 Bushmaster Firearm, a Mossburg shotgun, and

$15,673 in U.S. Currency.

       {¶4} Maniaci was subsequently arraigned and entered a plea of not guilty.

       {¶5} On September 6, 2016, the Marion County Grand Jury returned a

“Supplemental Indictment” incorporating Counts One and Two from the prior

indictment and also alleging that Maniaci committed two counts of Trafficking in

Cocaine, in violation of R.C. 2925.03(A)(1)/(C)(4), both felonies of the fifth degree.

Upon being arraigned, Maniaci also entered a plea of not guilty to the offenses listed

in the “Supplemental Indictment.”

       {¶6} On September 23, 2016, Maniaci filed a motion to suppress the

evidence obtained during the execution of the anticipatory warrant issued for the

search of 860 Kibbey Drive, Apartment C. Maniaci challenged the probable cause

outlined in the affidavit supporting the search warrant and claimed constitutional

violations with the subsequent execution of the warrant. The State filed a response

supporting the issuance and execution of the anticipatory search warrant.

       {¶7} On December 7, 2016, the State filed a Bill of Particulars setting forth

Maniaci’s conduct comprising the offenses listed in the indictments.

       Count 1: On or about August 11, 2016 and at 860 Kibbey Drive,
       Apt. C, Marion, Marion County, Ohio, officers with the Marmet

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        Drug Task Force executed a search warrant at the home of
        Defendants William Maniaci and [Maniaci’s girlfriend]. When
        the search warrant was executed, Defendant William Maniaci was
        outside of the residence for the purpose of meeting with CI 16-03
        in order to sell a quarter ounce of cocaine. [Maniaci’s girlfriend]
        was inside of the residence. When detectives entered, [Maniaci’s
        girlfriend] was seen coming from the back of the residence. Upon
        a search of the residence, detectives found what appeared to be a
        large amount of cocaine in the toilet bowl. During the search,
        detectives found a total of 587.19 grams of cocaine, or a
        compound, mixture, preparation or substance containing cocaine.
        Defendant [is] a major drug offender as defined in R.C.
        2929.01(w). 1

        Count 2: The State reincorporates the facts as outlined in Count
        1 above and adds that during the search, detectives found heroin
        in the residence. The multiple baggies of suspected heroin were
        tested and weighed by BCI and found to be 349.03 grams of
        heroin, or a compound, mixture, preparation or substance
        containing heroin. Defendant [is] a major drug offender as
        defined in R.C. 2929.01(w).

        Count 4: On or about June 16, 2016 and in Marion County, Ohio,
        Defendant William Maniaci, sold 4.10 grams of cocaine, or a
        compound, mixture, preparation, or substance containing cocaine
        to CI 16-03 for $350.00. The sale took place while driving within
        Marion County, Ohio.

        Count 5: On or about August 11, 2016 and in Marion County,
        Ohio, Defendant, William Maniaci, offered to sell a quarter ounce
        of cocaine to CI 16-03 for $350.00. Before the buy took place,
        detectives with the Marmet drug task force arrested the
        Defendant. At the time of the stop, the Defendant had two
        separately wrapped bags of cocaine. One was found on him and
        one which he threw. The baggies weighed 6.94 grams and 6.75
        grams. Both were tested by BCI and were found to contain
        cocaine, or a compound, mixture, preparation, or substance
        containing cocaine.

1
 Count Three of the “Joint Indictment” pertained only to the offense of Tampering with Evidence alleged to
have been committed by Maniaci’s girlfriend.

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(Doc. No. 37).

       {¶8} On December 22, 2016, the trial court held a hearing on Maniaci’s

motion to suppress evidence where several officers from the MARMET drug task

force involved in the August 11, 2016 controlled drug transaction operation testified

regarding the obtaining and the execution of the search warrant.

       {¶9} On December 28, 2016, the trial court overruled Maniaci’s suppression

motion and the matter was set for a jury trial.

       {¶10} On March 23, 2017, the Marion County Grand Jury returned a “Joint

Superseding Indictment” incorporating the counts stated in the previous indictments

and alleging the additional specification that Maniaci “recklessly had a firearm on

or about his person or under his control when he committed the offense[s]” set forth

in Counts One, Two, and Five.

       {¶11} Maniaci appeared for a hearing on March 31, 2017, during which the

trial court granted the State’s motion to dismiss the Trafficking in Cocaine charges

in Counts Four and Five, the second forfeiture specification pertaining to the

$15,673 found in the apartment, and the firearm specification stated in the “Joint

Superseding Indictment.” At this hearing, Maniaci entered a plea of no contest to

Counts One and Two, first degree felony charges of Possession of Cocaine and




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Possession of Heroin, with major drug offender and forfeiture specifications. The

trial court accepted the plea and proceeded to sentencing.2

         {¶12} On August 6, 2017, the trial court issued a judgment entry of sentence

imposing a mandatory eleven-year prison term on each count and ordering the terms

to be served concurrently.

         {¶13} Maniaci now brings this appeal, asserting the following assignments

of error.

                              ASSIGNMENT OF ERROR NO. 1

         THERE WAS INSUFFICIENT PROBABLE CAUSE THAT
         EACH OF THE TRIGGERING EVENTS WOULD OCCUR AT
         THE TIME THE SEARCH WARRANT WAS REQUESTED.

                              ASSIGNMENT OF ERROR NO. 2

         AT THE TIME THE SEARCH WARRANT WAS EXECUTED,
         THERE WAS INSUFFICIENT PROBABLE CAUSE THAT
         DRUGS WOULD BE LOCATED IN 860 KIBBEY DRIVE, APT.
         C, MARION, OHIO.

                              ASSIGNMENT OF ERROR NO. 3

         THE SEARCH WARRANT IN THIS MATTER WAS
         DEFECTIVE BECAUSE IT DID NOT PROVIDE ANY FACTS
         TO SUPPORT PROBABLE CAUSE FOR ONE OF THE
         TRIGGERING EVENTS.




2
  We note that there appears to be a clerical error in the sentencing transcript which indicates that the plea
and sentencing hearing took place on April 17, 2017, eleven days after the judgment entry of sentence was
issued. The record establishes that the hearing actually took place on March 31, 2017, prior to the issuance
of the trial court’s sentencing entry.

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Case No. 9-17-14


                    ASSIGNMENT OF ERROR NO. 4

       THE ANTICIPATORY SEARCH WARRANT IN THIS
       MATTER WAS DEFECTIVE BECAUSE THE TRIGGERING
       EVENTS WERE NOT SUFFICIENTLY CERTAIN TO
       OCCUR.

                   First, Second, Third and Fourth Assignments of Error

       {¶14} At the outset, we elect to address Maniaci’s assignments of error

together due to the fact that they are substantially interrelated and pose similar issues

concerning whether the trial court erred in denying his motion to suppress. In his

assignments of error Maniaci challenges the validity of the search conducted of the

residence at 860 Kibbey Drive, Apartment C on constitutional grounds.

Specifically, Maniaci asserts that there was insufficient probable cause that each of

the required “triggering events” supporting the issuance of the anticipatory search

warrant would occur at the time the warrant was requested. Maniaci also asserts

there was insufficient probable cause that drugs would be found at the 860 Kibbey

Drive, Apartment C residence at the time the search warrant was executed.

                                 Standard of Review

       {¶15} A review of the denial of a motion to suppress involves mixed

questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as

such, is in the best position to evaluate the evidence and the credibility of witnesses.

State v. Bressler, 3d Dist. Van Wert No. 15-05-13, 2006-Ohio-611, ¶ 10, citing State

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Case No. 9-17-14


v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a motion to

suppress, “an appellate court must accept the trial court’s findings of fact if they are

supported by competent, credible evidence.” Burnside at ¶ 8, citing State v.

Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s conclusions of

law, however, our standard of review is de novo, and we must independently

determine whether the facts satisfy the applicable legal standard. Id., citing State v.

McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

       {¶16} The Fourth Amendment to the United States Constitution and Section

14, Article I of the Ohio Constitution guarantee “[t]he right of the people to be

secure in their persons, houses, papers, and possessions, against unreasonable

searches and seizures.”      Accordingly, the State is prohibited from making

unreasonable intrusions into areas where people have legitimate expectations of

privacy without a search warrant. United States v. Chadwick, 433 U.S. 1, 7 (1977)

overruled on other grounds in California v. Acevedo, 500 U.S. 565 (1991).

       {¶17} The Ohio Supreme Court has previously held that:

       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, 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.



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State v. George, 45 Ohio St.3d 325 (1989), at syllabus, citing Illinois v. Gates, 462

U.S. 213, 238-39 (1983). Thus, probable cause exists when a reasonably prudent

person would believe that there is a fair probability that the place to be searched

contains evidence of a crime. See State v. Blevins, 3d Dist. Marion No. 9-06-40,

2007-Ohio-6972, ¶ 19, citing Illinois v. Gates, 462 U.S. 213 (1983).

                           Anticipatory Search Warrants

       {¶18} Anticipatory search warrants take effect at a specified future time or

event, not at issuance, and generally do not run afoul of the Fourth Amendment.

United States v. Grubbs, 547 U.S. 90, 94 (2006). “An anticipatory warrant is one

based upon an application showing probable cause that at some future time, but not

presently, certain evidence of crime will be located at a specified place to be

searched.” State v. Folk, 74 Ohio App.3d 468, 472 (2d Dist. 1991). Probable cause

for anticipatory warrants is conditional on the occurrence of a particular “triggering

condition,” usually the future delivery, sale, or purchase of contraband. Grubbs,

547 U.S. at 94. This type of warrant requires the issuing magistrate to conclude,

first, that there is a fair probability that contraband or evidence of a crime will be

found in the place to be searched if the triggering condition occurs and, second, that

there is probable cause to believe that the triggering condition will occur. Id. at 96-

97; see also, State v. Blevins, 3d Dist. Marion No. 9-06-40, 2006-Ohio-6972, ¶ 21.




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Case No. 9-17-14


       {¶19} Turing to the instant case, the affidavit submitted in support of the

request for the anticipatory search warrant stated the following:

       Probable Cause

       The facts and grounds upon which I believe that a warrant should
       be issued and that the property sought is located where noted are
       as follows: affidavit of Detective Matt Baldridge.

       1. On June 16th, 2016 a Confidential Informant working for
       the MARMET Drug Task Force made a controlled purchase of
       cocaine from William A. Maniaci II AKA: Will. The Confidential
       Informant picked Will up at Avalon Lakes Apartment Complex.
       Det. Troutman observed Will get into the Confidential
       Informant’s vehicle. The Confidential Informant drove Will to
       several different locations before dropping him off in the area of
       Chestnut St. The Confidential Informant purchased
       approximately 4.5 grams of cocaine from Will for $350.00. No
       one got into the car with the informant expect [sic] Maniaci. The
       informant was searched before and after the buy.

       2. After the controlled purchase on June 16th, 2016. Det. Isom
       viewed the audio/video recording from the buy. The recordings
       were consistent with what the Confidential Informant had told us.
       During the conversation between Will and the Confidential
       Informant Will can be heard saying “not even no little shit all
       weight.” Will also says “mother fuckers be getting mad at me
       cause I be telling them bro if you ain’t spending at least $500 Im
       [sic] not coming man.” Later in the conversation will [sic] says “I
       was getting out the car the other day, fuckin I had a whole fuckin
       uh kilo sitting on my lap. I ride with it cause if I get pulled over
       I’m getting out and running.”

       3. On August 11th, 2016 at approximately 0705 Hours Det.
       Troutman and Trooper Bice observed Will Maniaci leave 860
       Kibby [sic] Dr. Apartment C. Marion Ohio.

       4. MARMET Detectives are requesting an anticipatory search
       warrant be issued for 860 Kibby [sic] Dr. Apartment C Marion

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Case No. 9-17-14


       Ohio. MARMET Detectives will using the same Confidential
       Informant that was used on June 16th, 2016. The CI will be
       placing a recorded phone call to Will Maniaci and will be ordering
       a ¼ ounce of cocaine. The phone call will be monitored “live” by
       Det. Isom. MARMET Detectives will be arresting Will Maniaci
       on a warrant for trafficking in cocaine warrant [sic] when he
       arrives to deliver the drugs to the informant. No control buy will
       take placec [sic]. The execution of this search warrant will not
       take place unless MARMET Detectives observe Will Maniaci
       leave 860 Kibby [sic] Dr. Apartment C. and cocaine is located on
       his person at the time of this arrest.

(Doc. No. 17, Ex. A).

       {¶20} Notably, the search warrant specified that 860 Kibbey Drive

Apartment C is situated in the Avalon Lakes apartment complex and also provided

authorization for the occupants to be searched upon execution of the search warrant.

(Doc. No. 17, Ex. A). The search warrant described the property to be searched for

as “cocaine and/or marijuana and/or other narcotics and/or controlled substances”

and numerous other items related to the illegal trafficking of those substances. (Id.).

The anticipatory search warrant also set forth the following three “triggering

conditions” that must occur prior to its execution:

       You are commanded that this search may be executed only on
       completion of a controlled phone call to William Maniaci, him
       leaving the 860 Kibby [sic] Dr apartment C address in Marion,
       Ohio and after finding cocaine on his person. This warrant may
       only be executed during the day time hours (06:59am to 07:59pm).

(Doc. No. 17, Ex. A).




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                       Evidence at the Suppression Hearing

       {¶21} Testimony from law enforcement involved in the case established that

the confidential informant had ongoing contact with Maniaci. Specifically, the

testimony revealed that on June 16, 2016, the confidential informant picked up

Maniaci at 860 Kibbey Drive, the address of an apartment building in the Avalon

Lakes apartment complex. The confidential informant indicated that Maniaci had a

“big bag of cocaine on him already” when he picked up Maniaci. (Dec. 22, 2016

Supp. Hrg. at 19). The confidential informant drove Maniaci to different locations

to “drop off drugs to sell” and Maniaci completed the transactions in the confidential

informant’s vehicle. (Id.).     On the same day, the confidential informant also

purchased a quarter ounce of cocaine from Maniaci. Notably, law enforcement had

already obtained a search warrant based upon the June 16, 2016 events, but did not

execute it.

       {¶22} Law enforcement continued its investigation of Maniaci by

conducting surveillance on the 860 Kibbey Drive Apartment C address on August

11, 2016. Detective David Troutman testified that he observed Maniaci leaving the

apartment at 7:05 a.m. to go to work, indicating that Maniaci had stayed overnight

in Apartment C. Det. Troutman observed Maniaci leaving the apartment again at

4:49 p.m. and walking approximately twenty feet to a location where two vehicles,

a red SUV and a white Cadillac were parked. Det. Troutman testified that he had


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Case No. 9-17-14


been informed by another member of the task force that the controlled phone call

by the confidential informant had been made prior to him seeing Maniaci leave the

apartment this second time.

         {¶23} Det. Troutman observed Maniaci walk out of the apartment door and

approach the area in between the parked cars. Maniaci interacted with the people

in the red SUV and then walked over to the white Cadillac. Det. Troutman testified

that he saw Maniaci open the passenger door and get into the white Cadillac. Det.

Troutman did not observe anything in Maniaci’s hands when he walked from the

red SUV to the white Cadillac, however, when Maniaci came back to the red SUV

from the white Cadillac, he had what appeared to be a white pillow in his hands.

Moments later, the decision was made to arrest Maniaci. The arrest was effectuated

by another member of the task force, who relayed to Det. Troutman that cocaine

was found on Maniaci’s person. After receiving word, Det. Troutman retrieved his

“ramming unit” and executed the search warrant of the residence.

                                      Analysis

         {¶24} On appeal, Maniaci claims that there was insufficient probable cause

that the three “triggering conditions” stated in the affidavit supporting the warrant

would occur. Maniaci contends that the likelihood that each event would occur at

the time of the issuance of the warrant was too speculative to constitute probable

cause.


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Case No. 9-17-14


       {¶25} Initially, we note that “The Fourth Amendment ‘does not require that

the triggering condition for an anticipatory search warrant be set forth in the warrant

itself.’ ” United States v. Perkins, ---F.Supp.3d---, 2017 WL 2954633, quoting

Grubbs at 99. The triggering event, however, must be explicit, clear, and narrowly

drawn. United States v. Miggins, 302 F.3d 384, 395 (6th Cir. 2002). The purpose

of defining a triggering event in an anticipatory warrant is to ensure that officers

serve an almost ministerial role in deciding when to execute the warrant. United

States v. Ricciardelli, 998 F.2d 8, 12 (1st Cir. 1993) (internal quotations omitted).

However, “[w]arrants and their supporting documents are [to] be read not

hypertechnically, but in a commonsense fashion.” Perkins, 2017 WL 2954633,

citing Miggins, 302 F.3d at 395 (internal quotations omitted). If a triggering event

does not occur, the warrant is rendered void. United States v. Rey, 923 F.2d 1217,

1221 (6th Cir. 1991); see also United States v. Rowland, 145 F.3d 1194, 1201 (10th

Cir. 1998).

       {¶26} Contrary to Maniaci’s position on appeal, the supporting affidavit

indicated that the confidential informant had an ongoing relationship with Maniaci

for the span of several weeks, and that Maniaci appeared to have enough confidence

in the relationship to the extent that he was willing to have the confidential informant

pick him up at his residence, take him to various locations to engage in numerous

drug deals in the confidential informant’s vehicle, and to thereafter boast to the


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Case No. 9-17-14


confidential informant about the amount of cocaine that he had in his possession to

sell. Therefore, we do not find it too remote or speculative, for the purposes of

establishing probable cause, that the confidential informant would be able to make

the controlled phone call to arrange for a similar purchase of cocaine from Maniaci

as he did on June 16, 2016.

       {¶27} Maniaci also argues that there was insufficient nexus between him and

the 860 Kibbey Drive Apartment C address to both establish probable cause to

premise a “triggering condition” upon him leaving the residence and to issue a

search warrant for the residence. On appeal, Maniaci maintains that he was merely

an overnight guest at the apartment. However, the evidence at the suppression

hearing revealed that Maniaci was associated with the apartment both during the

June and August controlled drug operations with the confidential informant.

Detective Andrew Isom with MARMET drug task force testified that Maniaci stated

on recorded phone calls that the 860 Kibbey Drive Apartment C address was his

residence. (Dec. 22, 2016 Supp. Hrg. at 49). During their investigation, the task

force learned from the confidential informant that Maniaci resided in the apartment

with his girlfriend. Detective Isom further indicated at the suppression hearing that

a motor vehicle records search revealed the girlfriend’s license plates were

registered with the 860 Kibbey Drive Apartment C address.




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Case No. 9-17-14


       {¶28} Based upon the record, we find reliable evidence connecting

Maniaci’s drug dealing activity to the 860 Kibbey Drive Apartment C residence.

Specifically, because the quantity of drugs and the repeated nature of the

transactions, it was reasonable to conclude that Maniaci was engaged in ongoing

drug trafficking. Thus, it was reasonable to infer that evidence of illegal activity

would be found at Maniaci’s residence.      In other words, the record reveals facts

from which a judge can infer a fair probability of finding evidence in the residence

connected to Maniaci’s known drug trafficking. In considering the totality of the

circumstances, we conclude that the search warrant and supporting affidavit

contained sufficient specific, reliable information to reasonably establish that there

was probable cause to believe evidence of drug trafficking activity would be found

inside the residence once the triggering conditions occurred.

       {¶29} With respect to the third “triggering condition,” Maniaci contends that

the warrant can only be read as requiring Maniaci to have the cocaine on his person

when he leaves the apartment as a condition precedent to its execution. The

supporting affidavit states that “[t]he execution of this search warrant will not take

please unless MARMET Detectives observe Will Maniaci leave 860 Kibby [sic] Dr.

Apartment C. and cocaine is located on his person at the time of arrest;” and the

search warrant itself stated that “[y]ou are commanded that search may be executed

only on completion of a controlled phone call to William Maniaci, him leaving the


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Case No. 9-17-14


860 Kibby [sic] Dr. apartment C address in Marion, Ohio and after finding cocaine

on his person.” In reviewing these documents, we simply find no basis to support

Maniaci’s limited reading of the language in the search warrant and therefore find

the argument is without merit.

       {¶30} In any event, even if the affidavit did omit certain details necessary for

a probable-cause determination, the search should be upheld because the executing

law enforcement officers reasonably and in good faith relied on the warrant. The

affidavit here is not a “bare bones” affidavit that fails to identify some connection,

regardless of how remote it may have been, between the criminal activity at issue

and the place to be searched. See United States v. Laughton, 409 F.3d 744, 750 (6th

Cir. 2005) (emphasis in original). The United States Supreme Court has held,

“[W]hen an officer acting with objective good faith has obtained a search warrant

from a judge or magistrate and acted within its scope ... there is no police illegality

and thus nothing to deter [by excluding evidence found during the search].” United

States v. Leon, 468 U.S. 897, 920-21 (1984). Therefore, the evidence would not be

excluded if it was found during a search executed pursuant to an invalid warrant, as

long as the officers reasonably relied on the warrant. However, since we have found

that the warrant and affidavit in support established probable cause to search the

residence at issue, we find that the affidavit is not so lacking in any indicia of

probable cause as to make any reliance upon it unreasonable.


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Case No. 9-17-14


       {¶31} In sum, we conclude the record demonstrates that the judge issuing the

anticipatory search warrant could have reasonably concluded that there was a fair

probability that contraband or evidence of a crime would be found in the residence

at issue if the triggering conditions occurred, and that there was probable cause to

believe that the triggering conditions were going to occur. Therefore, we find that

the trial court did not err in overruling Maniaci’s motion to suppress the evidence

obtained after the execution of the search warrant of the 860 Kibbey Drive

Apartment C residence.     Accordingly, the assignments are overruled and the

judgment is affirmed.

                                                               Judgment Affirmed

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

/jlr




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