[Cite as State v. Miller, 2013-Ohio-2851.]


                                         COURT OF APPEALS
                                     GUERNSEY COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :       JUDGES:
                                              :
                                              :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                  :       Hon. John W. Wise, J.
                                              :       Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :
                                              :
DALE MILLER                                   :       Case No. 12 CA 14
                                              :
                                              :
        Defendant - Appellant                 :       OPINION



CHARACTER OF PROCEEDING:                              Appeal from the Guernsey County
                                                      Court of Common Pleas, Case No.
                                                      11 CR 82




JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     June 21, 2013




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

DANIEL G. PADDEN                                      MELISSA M. PRENDERGAST
Prosecuting Attorney                                  Assistant State Public Defender
139 West 8th Street                                   250 East Broad Street, Suite 1400
Cambridge, OH 43725                                   Columbus, OH 43215
Guernsey County, Case No. 12 CA 14                                                         2



Baldwin, J.

      {¶1}    Defendant-appellant Dale Miller appeals from the denial by the Guernsey

County Court of Common Pleas of his Motion to Suppress. Plaintiff-appellee is the State

of Ohio.

                             STATEMENT OF THE FACTS AND CASE

      {¶2}    On August 11, 2011, the Guernsey County Grand Jury indicted appellant

on one count of aggravated trafficking in drugs in violation of R.C. 2925.03(C)(1)(a), a

felony of the fourth degree, and one count of having weapons while under disability in

violation of R.C. 2923.13, a felony of the third degree. At his arraignment on August 22,

2011, appellant entered a plea of not guilty to the charges contained in the indictment.

      {¶3}    Thereafter, on October 12, 2011, appellant filed a Motion to Suppress all

evidence seized from the search of his residence, including firearms and drugs.

Appellant, in his motion, alleged that the affidavit upon which the search warrant was

based lacked probable cause and that, therefore, the search warrant must be

invalidated. Appellant filed two supplements to his motion.

      {¶4}    A hearing on appellant’s Motion to Suppress was held on October 31,

2011 and November 4, 2011. At the hearing, Sergeant Mark Baker of the Cambridge

Police Department testified that he was a narcotics investigator. He testified that shortly

after taking the position in March of 2011, he began investigating Robert Miller,

appellant’s son. He began his investigation on or about May 25, 2011. The Sergeant

testified that he believed that Robert Miller resided at 522 Whitaker Avenue in

Cambridge with appellant.
Guernsey County, Case No. 12 CA 14                                                        3


      {¶5}    Sergeant Baker testified that, on May 26, 2011, he met with Chelsea Neff

who had been introduced to him by the Guernsey County Sheriff’s Department. Neff

told him that she was a recovering addict and had bought Percocet from Robert Miller in

the past at his residence.   Neff did not know the exact address where Miller resided,

but based on her description, the Sergeant looked up the address and, when he drove

by the Whitaker Avenue address with Neff, she indicated that the 522 Whitaker Avenue

address was correct. Neff told Sergeant Baker that they had firearms in the house.

      {¶6}    When asked, Sergeant Baker testified that Neff had never worked for him

in the past, but that she had successfully worked as a confidential informant for the

Guernsey County Sheriff’s Department. He testified that on May 26, 2011, Neff told him

that she could act as a confidential informant for him and told him that she was addicted

to drugs again and that the only way to stop using them was to get her supplier busted.

The Sergeant then decided to use Neff as a confidential informant. He testified that in

exchange for her assistance, Neff received no consideration and signed a written

agreement to such effect.

      {¶7}    At the time he met with Neff on May 26, 2011, Sergeant Baker was aware

that she had been investigated by Detective Jeff Paden of the Guernsey County

Sheriff’s Office and had recently been released from jail. He testified that she had been

in jail for taking eight (8) of her brother's guns and that it was his understanding that no

charges were going to be pursued.. Sergeant Baker testified that once he was informed

that she was not going to be charged, he decided to use Neff as an informant. Such

information was not contained in the affidavit in support of the search warrant. Sergeant
Guernsey County, Case No. 12 CA 14                                                      4


Baker further testified that he was unaware, when seeking a search warrant, that Neff

also was suspected of stealing a gun from John Blair, Jr.

      {¶8}    When questioned, Sergeant Baker indicated that he was aware that Neff

had been charged with possession of drugs in Tuscarawas County. He testified that he

did not include such information in the affidavit in support of the search warrant in this

case because Neff had not been convicted.

      {¶9}    Sergeant Baker further testified that when he met with Neff on May 26,

2011, he provided her with $90.00 in confidential informant funds and issued a

recording device to her. The Sergeant further testified that Neff enlisted the assistance

of a friend, Carrie Alloway, because Neff did not think that Robert Miller would sell to

her because she just gotten out of jail. Neff contacted Carrie Alloway, who had no idea

that she was working as an informant. When the Sergeant met with Neff on May 26,

2011, he checked her for contraband. After leaving the police station, Neff traveled to

Carrie Alloway’s residence and Alloway then drove to 522 Whitaker Avenue. Alloway,

whose children were in the vehicle at the time, then exited the vehicle, went inside and

then returned to the vehicle presumably with the drugs. The portion of the transaction

that would have taken place involving Alloway inside 522 Whitaker was not recorded.

      {¶10}   According to Sergeant Baker, once Neff and Alloway returned to Alloway’s

house, they each ingested one Percocet pill.        Neff gave Sergeant Baker the one

Percocet pill that remained from the transaction.

      {¶11}   Testimony was adduced that Neff, who had been patted down before the

sale, made a second purchase of three Percocet pills at 522 Whitaker Avenue on May

27, 2011 from Travis Miller, appellant’s son, in the driveway. When asked, the Sergeant
Guernsey County, Case No. 12 CA 14                                                       5


testified that he believed that Neff purchased three pills during the second transaction.

Alloway did not accompany Neff to 522 Whitaker because she was at work. This second

transaction was recorded. Sergeant Baker testified that, on such date, Neff was

expected to purchase three Percocet pills and returned with only one. The other two pills

were ingested by Neff and Alloway prior to Neff returning to the station. Neff told the

Sergeant that if she did not ingest a pill, her supplier would believe that she was working

for the police. Neff turned the recording device over to Sergeant Baker.

      {¶12}   After these two purchases, a search warrant was obtained and executed

at 522 Whitaker Avenue based on Sergeant Baker’s affidavit.           On May 27, 2011,

appellant’s house was searched and two firearms were confiscated, among other items.

Officers arrested appellant, Robert Miller and two other individuals who were present at

the time of the search.

      {¶13}   Sergeant Baker testified that after the search warrant was obtained and

executed, he had a chance to meet on May 28, 2011 with Carrie Alloway who provided

him with a statement about what had happened during the first buy. He testified that

Alloway, who was informed that she had been part of a controlled purchase of drugs, told

him that she had purchased drugs from appellant rather than from Robert Miller.

       {¶14} Subsequently,     appellant,   who   previously   had   been    convicted   of

possession of drugs, was indicted on one count each of trafficking in drugs and having

weapons under disability.

      {¶15}   After the trial court denied his Motion to Suppress, appellant pled no

contest to one count of having weapons while under disability and was found guilty by

the court. The remaining count was dismissed. As memorialized in a Judgment Entry
Guernsey County, Case No. 12 CA 14                                                      6


filed on April 18, 2012, appellant was ordered to serve twelve (12) months in prison and

to pay court costs.

       {¶16}   Appellant now raises the following assignment of error on appeal:

       {¶17}   THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING MR.

MILLER’S MOTION TO SUPPRESS BECAUSE THE AFFIDAVIT SUPPORTING THE

SEARCH WARRANT LACKED PROBABLE CAUSE.

                                                   I

       {¶18}   Appellant, in his sole assignment of error on appeal, argues that the trial

court erred in denying his Motion to Suppress. Appellant specifically contends that the

affidavit supporting the search warrant lacked probable cause.

       {¶19}   Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 154–155, 2003–Ohio–5372, 797 N.E.2d

71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of

fact and is in the best position to resolve questions of fact and to evaluate witness

credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995–Ohio–243, 652 N.E.2d

988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a

reviewing court must defer to the trial court's factual findings if competent, credible

evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.

Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1 (4th Dist.1998); State v. Medcalf, 111

Ohio App.3d 142, 675 N.E.2d 1268 (4th Dist.1996). However, once this Court has

accepted those facts as true, it must independently determine as a matter of law whether

the trial court met the applicable legal standard. See Burnside, supra, citing State v.

McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist 1997); See, generally,
Guernsey County, Case No. 12 CA 14                                                         7

United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Ornelas v.

United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). That is, the

application of the law to the trial court's findings of fact is subject to a de novo standard

of review Ornelas, supra. Moreover, due weight should be given “to inferences drawn

from those facts by resident judges and local law enforcement officers.” Ornelas, supra

at 698, 116 S.Ct. at 1663.

         {¶20}   Appellant, in the case sub judice, argues that the trial court erred in

denying his Motion to Suppress because the affidavit supporting the search warrant

lacked probable cause. Appellant maintains that the affidavit relies almost exclusively on

allegations of drug activity made by Chelsea Neff and that Sergeant Baker had never

worked with Neff before. He further contends that the affidavit offers no basis from which

to determine Neff’s reliability and veracity and contains misinformation and omits

significant facts with reckless disregard as to whether those omissions would mislead the

judge.

         {¶21}   In addressing the substance of defendant's assignment of error, we begin

with Crim.R. 41, which governs the issuance and execution of search warrants in Ohio.

Subsection (C) of the rule reads, in pertinent part:

         {¶22}   “A warrant shall issue under this rule only on an affidavit or affidavits

sworn to before a judge of a court of record and establishing the grounds for issuing the

warrant. The affidavit shall name or describe the person to be searched or particularly

describe the place to be searched, name or describe the property to be searched for and

seized, state substantially the offense in relation thereto, and state the factual basis for

the affiant's belief that such property is there located. If the judge is satisfied that
Guernsey County, Case No. 12 CA 14                                                        8


probable cause for the search exists, he shall issue a warrant identifying the property

and naming or describing the person or place to be searched. The finding of probable

cause may be based upon hearsay in whole or in part, provided there is a substantial

basis for believing the source of the hearsay to be credible and for believing that there is

a factual basis for the information furnished.”

       {¶23}   In reviewing the affidavit in this case, we are guided by the following

instruction by the Ohio Supreme Court: “[R]eviewing courts may not substitute their own

judgment for that of the issuing magistrate by conducting a de novo determination as to

whether the affidavit contains sufficient probable cause upon which the reviewing court

would issue the search warrant. On the contrary, reviewing courts should accord great

deference to the magistrate's determination of probable cause, and doubtful or marginal

cases in this area should be resolved in favor of upholding the warrant.” State v. George,

45 Ohio St.3d 325, 330 544 N.E.2d 640 (1989), citing Illinois v. Gates, 462 U.S. 213,

238–239, 102 S.Ct. 2317, fn 10 (1983). “ ‘[T]he duty of a reviewing court is simply to

ensure that the magistrate had a ‘substantial basis for * * * conclud[ing]’ that probable

cause existed.” State v. George, supra at 329, citing Illinois, 462 U.S. at 238–239.

       {¶24}   Deference to the judge issuing a warrant, however, is not boundless. State

v. Birk, 5th Dist. No.2007–CA–63, 2008–Ohio–5571 ¶ 27. Notwithstanding the

reasonable reliance on a search warrant exception to Fourth Amendment exclusionary

rule, suppression is an appropriate remedy if the magistrate or judge in issuing a warrant

was misled by information in an affidavit that the affiant knew was false or would have

known was false except for his reckless disregard of the truth. United States v. Leon, 468

U.S. 897, 914, 104 S.Ct. 3405, 3416, 82 L.Ed.2d 677 (1984). Good faith is no defense
Guernsey County, Case No. 12 CA 14                                                        9

where the officer himself is the source of the challenged information. See, United States

v. Baxter, 889 F.2d 731 (6th Cir. 1990).

       {¶25}   “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 reckless disregard to the truth’.”

State v. Waddy, 63 Ohio St.3d 424, 441, 588 N.E.2d 819 (1992), citing Frank v.

Delaware, 438 U.S. 154, 155–156, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667, 672 (1978).

Reckless disregard means that the affiant had serious doubts of an allegation's truth.

United States v. Williams, 737 F.2d 594, 602 (C.A. 7, 1984). . “Omissions count as false

statements if ‘designed to mislead, or * * * made in reckless disregard of whether they

would mislead, the magistrate’.” State v. Waddy, supra. at 441. (Emphasis deleted in

original) (Citation omitted).

       {¶26}   In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667

(1978), the United States Supreme Court held that when the accused proves by a

preponderance of the evidence that “a false statement knowingly and intentionally, or

with reckless disregard for the truth, was included by the affiant in the warrant affidavit,

and [that] the allegedly false statement is necessary to the finding of probable cause,

the Fourth Amendment requires that * * * the fruits of the search [must be] excluded to

the same extent as if probable cause was lacking on the face of the affidavit.” Id. at

155–156.

       {¶27}   Pursuant to Franks, supra, when the evidence presented during a

suppression hearing establishes a false statement was included by the affiant in the

warrant affidavit, the false material must be excised. Then, the remainder of the
Guernsey County, Case No. 12 CA 14                                                        10


affidavit's contents must be scrutinized for a determination of whether the affidavit still

contains sufficient facts and supporting circumstances to establish probable cause in

the eyes of a detached and neutral magistrate. See State v. Waddy, 63 Ohio St.3d at

441.

       {¶28}   The burden of showing something by a preponderance of the evidence ...

simply requires the trier of fact to believe that the existence of a fact is more probable

than its nonexistence before [he] may find in favor of the party who has the burden to

persuade the [judge] of the fact's existence.” Concrete Pipe & Products of Cal., Inc. v.

Construction Laborers Pension Trust for Southern Cal., 508 U.S. 602, 622, 113 S.Ct.

2264, 2279, 124 L.Ed.2d 539, (1993) (internal quotation marks omitted). In other words,

the preponderance standard goes to how convincing the evidence in favor of a fact

must be in comparison with the evidence against it before that fact may be found, but

does not determine what facts must be proven as a substantive part of a claim or

defense. Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 117 S.Ct. 195 at n. 3

(1997).

       {¶29}   In assessing whether a party has met its burden of proof, the Ohio

Supreme Court has stated, “[t]he degree of proof required is determined by the

impression which the testimony of the witnesses makes upon the trier of facts, and the

character of the testimony itself. Credibility, intelligence, freedom from bias or prejudice,

opportunity to be informed, the disposition to tell the truth or otherwise, and the

probability or improbability of the statements made, are all tests of testimonial value.

Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118, 123 (1954). “In determining

the sufficiency of probable cause in an affidavit submitted in support of a search
Guernsey County, Case No. 12 CA 14                                                       11


warrant, ‘[t]he task of the issuing magistrate is simply to make a practical,

commonsense decision whether, given all the circumstances set forth in the affidavit

before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying

hearsay information, there is a fair probability that contraband or evidence of a crime will

be found in a particular place.' “ State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640

(1989), paragraph one of the syllabus, quoting Illinois v. Gates, 462 U.S. 213, 238–39,

103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

      {¶30}   Appellant, in the case sub judice, argues that there is insufficient evidence

in the affidavit supporting the search warrant because there were errors in the affidavit.

Appellant points out that the affidavit incorrectly states that Alloway accompanied Neff

for the second purchase when she did not and that Sergeant Baker incorrectly alleged

in the affidavit that the entire first transaction was recorded on the digital recording

device when, in fact, the actual purchase by Alloway was not recorded. Appellant also

points out that the affidavit states that Neff and Alloway ingested one pill rather than one

pill each. Appellant also argues that Sergeant Baker omitted from his affidavit the fact

that Neff was not charged in connection with the theft of any firearms and the fact that

he knew Neff was facing drug-related charges in Tuscarawas County. Furthermore,

appellant emphasizes that Sergeant Baker did not search Carrie Alloway or her vehicle

prior to the first transaction and did not independently corroborate Neff’s credibility.

Finally, appellant notes that the two buys were not observed by law enforcement.

      {¶31}   However, we concur with the trial court that there was insufficient

evidence of intentional or reckless misrepresentations and that there was sufficient

probable cause of issuance of the search warrant even after excising the incorrect
Guernsey County, Case No. 12 CA 14                                                     12


information. Sergeant Baker, in his affidavit, stated that Neff previously had worked with

the Guernsey County Sheriff’s Office and had proven to be reliable. At the hearing,

Sergeant Baker testified that Neff was receiving no special consideration in exchange

for her use as a confidential informant and that he did not mention the Tuscarawas

County charges because Neff had not been convicted of any crime. There is no

evidence that, by omitting information about the Tuscarawas County case or the case

involving the guns, that the Sergeant intended to mislead the judge who signed the

affidavit. The affidavit clearly stated that Neff had recently been released from jail.

Sergeant Baker testified that appellant had been jailed after taking her brother’s guns

and that it was his understanding that she was not going to be charged. He further

testified that he did not, for such reason, believe that such specific information was

relevant. With respect to the allegation that Neff was suspected of stealing a gun from

John Blair, Jr., the Sergeant testified that he did not become aware of such fact until

right before the suppression hearing.     He could not, therefore, have included such

information in his affidavit.

      {¶32}    In addition, without taking into account the first buy conducted by Alloway

that was mentioned in the affidavit, the affidavit stated that appellant went to 522

Whitaker Avenue on May 26, 2011 and purchased drugs (Percocet) from Travis Miller,

appellant’s son, in the driveway. The affidavit stated that this second purchase was

recorded and that the confidential informant later returned to the police station and

provided Sergeant Baker with the proceeds of the drug transaction and the recording

from the transaction. Based on this second transaction alone, we find that there was

probable cause for the issuance of the search warrant.
Guernsey County, Case No. 12 CA 14                                                    13


      {¶33}   Based on the foregoing, we find that the trial court did not err in denying

appellant’s Motion to Suppress. We do not find that appellant has demonstrated

anywhere in the record, let alone by a preponderance of the evidence, that Sergeant

Baker committed perjury or that he acted with reckless disregard with respect to any

statement made within the affidavit. There is no indication that there was an intent to

mislead the judge who issued the search warrant. We find that the affidavit provided

sufficient probable cause for the execution of the search warrant.
Guernsey County, Case No. 12 CA 14                                         14


      {¶34}   Accordingly, the judgment of the Guernsey County Court of Common

Pleas is affirmed.


By: Baldwin, J.

Gwin, P. J. and

Wise, J. concur.




                                     HON. CRAIG R. BALDWIN



                                     HON. W. SCOTT GWIN



                                     HON. JOHN W. WISE




CRB/dr
[Cite as State v. Miller, 2013-Ohio-2851.]


                  IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :
                                                :
        Plaintiff - Appellee                    :
                                                :
-vs-                                            :       JUDGMENT ENTRY
                                                :
DALE MILLER                                     :
                                                :
        Defendant -Appellant                    :       CASE NO. 12 CA 14


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

judgment of the Court of Common Pleas of Guernsey County, Ohio is affirmed. Costs

assessed to appellant.




                                             HON. CRAIG R. BALDWIN



                                             HON. W. SCOTT GWIN



                                             HON. JOHN W. WISE
