 [Cite as State v. Mitchell, 2013-Ohio-622.]



                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 STATE OF OHIO

         Plaintiff-Appellant

 v.

 LAYRUE MITCHELL

         Defendant-Appellee

 Appellate Case No. 25402

 Trial Court Case No. 12-CR-1055/1

 (Criminal Appeal from
 (Common Pleas Court)
                                               ...........

                                               OPINION

                               Rendered on the 22nd day of February, 2013.

                                               ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery County
Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301
West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellant

GEORGE A. KATCHMER, Atty. Reg. #0005031, 1886 Brock Road N.E., Bloomingburg, Ohio
43106
      Attorney for Defendant-Appellee

                                               .............

WELBAUM, J.

         {¶ 1}      In this case, the State of Ohio appeals, pursuant to R.C. 2945.67 and Crim.R.
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12(K), from a trial court decision and entry sustaining a suppression motion filed by

Defendant-Appellee, Layrue Mitchell.        The State contends that the trial court erred in

suppressing evidence obtained through execution of a search warrant. In particular, the State

argues that the affidavit supporting the search warrant provided a substantial basis upon which

the issuing judge could find a fair probability that a crime had been committed and that evidence

would be found within the place to be searched. In addition, the State maintains that the

detective who executed the search warrant relied in good faith on the issuance of the warrant.

          {¶ 2}   We conclude that the trial court erred in sustaining the motion to suppress. The

affidavit provided a substantial basis upon which the issuing judge could find a fair probability

that a crime had been committed and that evidence would be found within the place to be

searched. Accordingly, the judgment of the trial court will be reversed, and this cause will be

remanded for further proceedings.



                               I. Facts and Course of Proceedings

          {¶ 3}   In June 2012, Defendant-Appellee, Layrue Mitchell, was indicted on one count

of trafficking in heroin, one count of possession of heroin, one count of possession of criminal

tools, one count of misdemeanor possession of drugs, and three counts of having weapons while

under disability. Mitchell pled not guilty, and subsequently filed a motion to suppress evidence,

based on a claim that the affidavit supporting the warrant contained material misstatements and

omissions, and violated Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 57 L.Ed.2d 667

(1978).

          {¶ 4}   At the suppression hearing, Mitchell and the State stipulated to admission of a
                                                                                          3


copy of the search warrant. No testimony was submitted. Instead, Mitchell and the State agreed

that the motion to suppress was one brought pursuant to Franks, and involved only the four

corners of the affidavit. Mitchell argued that the warrant was insufficient to warrant a search of

his premises, because there was no statement as to the confidential informant’s reliability.

Mitchell also contended that the affidavit was misleading, because it gave the impression that the

confidential informant was closely monitored and that the informant was reliable, when none of

that was evidenced in the affidavit. The State argued that the confidential informant had been

searched prior to both of the drug buys, and that the confidential informant also said that he saw

firearms (which Mitchell was not permitted to have or own) in Mitchell’s residence.

       {¶ 5}     The affidavit prepared by Detective Greg Stout and filed to obtain the search

warrant states, in pertinent part, as follows:

               The affiant, Det. G. Stout, has been a sworn law enforcement officer with

       the City of Kettering since January of 2007. The affiant has been assigned to the

       Criminal Investigation Section of the Kettering Police Department since

       December of 2011. The affiant served as a Deputy Sheriff at the Miami County,

       Ohio Sheriff’s Office from October 2002 until January 2007. The affiant has

       investigated the criminal offenses of burglary, breaking and enterings, thefts,

       violent crimes, sex crimes, drug and narcotics investigations, weapons offenses

       and other crimes.      The affiant has attended numerous classes, seminars, and

       conferences on criminal investigation techniques and interview methods. The

       affiant has attended several classes and seminars on drug investigations.
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       On or about 12/03/2011 Confidential Informant (C.I.) #276 reported that

Layrue Mitchell Jr. sells heroin from his Moler Ave. town home. C.I. #276

directed Dets. J. Pedro and G. Stout to Mitchell’s residence, identifying it as 1515

Moler Ave. in the City of Kettering, Montgomery County, Ohio.              C.I. #276

informed Detectives that C.I. #276 has purchased heroin from Mitchell at this

address on several occasions. Det. Stout was able to verify from independent

sources that Mitchell does reside at 1515 Moler Ave.

       C.I. #276 reported that Mitchell keeps the heroin in an upstairs bedroom,

identified as Mitchell’s bedroom, in a night-stand drawer. Another adult male

known only as “Mike,” two adult females and a six year old female also reside in

the home. On or about 12/06/2011 C.I. #276, acting for the Kettering Police

Department contacted Mitchell by telephone at (937) 397-8842. Mitchell invites

[sic] C.I. #276 to his residence with the intention of selling C.I. #276 one half of a

gram of heroin for fifty dollars in U.S. currency. C.I. #276 was searched prior to

the transaction with no contraband located. C.I. #276 was issued fifty dollars in

U.S. currency then transported to the area of 1515 Moler Ave. While under

surveillance and constant police monitoring and control, C.I. #276 was observed

entering the home. C.I. #276 exited the home after a short time at which point he

turned over approximately .41 grams of suspected heroin to Det. Stout. C.I. #276

was again searched after the purchase with no contraband or currency located.

C.I. #276 reported that the juvenile female was present during the drug

transaction. State’s Exhibit 1, pp. 8-9, ¶ IV, 1-4.
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       {¶ 6}     The same observations were made regarding a transaction by C.I. #276 on

December 30, 2011, except that the amount of currency was $150, and the amount of suspected

heroin was 1.01 grams. However, in this case, the affidavit did not state that C.I. #276 was

searched prior to entering Mitchell’s home. The informant was searched after leaving the home,

however, and only contraband – and no currency – was found.

       {¶ 7}     In addition to the above information, the affidavit indicated that C.I. #276 had

reported that Mitchell possessed a rifle in his bedroom closet and a pistol stored in various

locations around the house. It further stated that the police had confirmed from computerized

data bases that Mitchell was a convicted felon and that his criminal record showed arrests for

robbery and convictions for two counts of felonious assault.        The affidavit also contained

information about a car that Mitchell drove. The car was registered to another person who was

not known to reside at the townhouse, but the vehicle was present during each drug buy and

several surveillance activities. C.I. #276 indicated to police that he knew Mitchell drove the car,

and pointed it out to detectives.

       {¶ 8}     The affidavit was signed on January 6, 2012, and the issuing judge approved a

search warrant the same day for the person and living quarters of Mitchell, and for the car that

Mitchell allegedly used. The police executed the warrant on January 6, 2012, and located

various drugs, drug paraphernalia, and guns at Mitchell’s home, in the places where C.I. #276

had specified they would be found.

       {¶ 9}     After considering the content of the affidavit, the trial court granted the motion

to suppress evidence obtained from the search. Relying on our prior decision in State v. Davis,

166 Ohio App.3d 468, 2006-Ohio-1592, 851 N.E.2d 515 (2d Dist.), the trial court noted that the
                                                                                              6


affidavit did not state whether the confidential informant was reliable, and did not describe what

“constant police monitoring and control” entailed, leaving the court to speculate about what the

informant relayed and what was within the affiant’s own knowledge. The trial court also

observed that the affidavit failed to aver that the informant had been searched prior to entering

Mitchell’s residence on December 30, 2011.

        {¶ 10}      The State appeals from the trial court decision sustaining the motion to suppress.



             II. Did the Affidavit Provide a Substantial Basis for Issuing the Warrant?

        {¶ 11}       The State’s first assignment of error states that :

                 The trial court’s suppression of the evidence was improper because the

        affidavit in support of the search warrant provided a substantial basis for the

        issuing judge to conclude that there was a fair probability that a crime had been

        committed and that evidence of that crime would be found within the place to be

        searched.

        {¶ 12}      Under this assignment of error, the State contends that the trial court erred by

relying too heavily on Davis, and by overlooking the strength of the remaining parts of the

affidavit.

        {¶ 13}      “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
                                                                                            7


place.’ ” State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 1989), paragraph one of the

syllabus, quoting from and following Illinois v. Gates, 462 U.S. 213, 238–239, 103 S.Ct. 2317,

76 L.Ed.2d 527 (1983).

       {¶ 14} The Ohio Supreme Court also stressed in George that:

                In reviewing the sufficiency of probable cause in an affidavit submitted in

       support of a search warrant issued by a magistrate, neither a trial court nor an

       appellate court should substitute its judgment for that of the magistrate by

       conducting a de novo determination as to whether the affidavit contains sufficient

       probable cause upon which that court would issue the search warrant. Rather, the

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

       basis for concluding that probable cause existed. In conducting any after-the-fact

       scrutiny of an affidavit submitted in support of a search warrant, trial and appellate

       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. Id. at paragraph two of the syllabus.

       {¶ 15}    In Davis, we found an affidavit “clearly insufficient to establish either probable

cause for the search or a basis for finding a good-faith exception to the probable cause

requirement.” Davis, 166 Ohio App.3d 468, 2006-Ohio-1592, 851 N.E.2d 515 (2d Dist.), ¶ 4.

The only issue in Davis was the facial sufficiency of the affidavit, and no other evidence was

submitted on the probable cause issue. Id. at ¶ 41. This is the situation in the case before us,

and is consistent with the fact that “a probable cause inquiry must be confined to the four corners

of the affidavit * * *.” State v. Klosterman, 114 Ohio App.3d 327, 333, 683 N.E.2d 100 (2d
                                                                                             8


Dist.1996). Unlike the present case, however, the connection in Davis between the affiant and

the drug purchase was considerably more attenuated.

       {¶ 16} The affidavit in Davis indicated that the confidential informant was given money

on four occasions to purchase drugs. The informant then gave the money to another individual

(“X”), who left the informant’s residence, went to the defendant’s residence, and on two of the

four occasions, returned with cocaine to complete the transaction. Davis at ¶ 40.

       {¶ 17}    Notably, the affidavit in Davis did not provide any information from which the

informant’s reliability could be determined. For example, the affiant did not indicate that he saw

any of the relevant matters, including the informant giving X the recorded buy money. The

affiant also did not say that he saw X going from the informant’s house to the defendant’s

residence, that he saw X leave the defendant’s house after staying a short time, or that he saw X

giving the informant cocaine. Id. at ¶ 44. As a further matter, the confidential informant in

Davis did not see X go with the defendant into a room and return with drugs, the informant was

not checked for contraband and equipped with a wireless transmitter, and there were no

subsequent, independent communications between X and the police, verifying the information.

Id. at ¶ 46. Based on these deficiencies, we concluded that the affidavit was weak and did not

support a finding of probable cause. Id. at ¶ 45-46.

       {¶ 18} The affidavit in Mitchell’s case does not suffer from the same or similar

infirmities. Instead, Detective Stout, the affiant, was directly involved with the person buying

the drugs, and the confidential informant personally observed the drug transaction.

Furthermore, while Detective Stout did not specifically state that C.I. #276 was “reliable,” the

facts in the affidavit, including the controlled drug buys and the police interaction with C.I. #276,
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provide the issuing authority with a substantial basis for believing that probable cause existed for

a search warrant.

       {¶ 19}       “Courts have generally recognized three categories of informants: (1) the

identified citizen informant, (2) the known informant, i.e., someone from the criminal world who

has a history of providing reliable tips, and (3) the anonymous informant.” State v. Jordan, 104

Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864,¶ 36, citing Maumee v. Weisner, 87 Ohio St.3d

295, 300, 720 N.E.2d 507 (1999).

       {¶ 20}       “Where a confidential or anonymous informant is the source of the hearsay, the

‘informant's veracity, reliability and basis of knowledge are all highly relevant’ in a totality of the

circumstances probable cause determination. Gates at 230 (internal quotations omitted). There

must be some basis in the affidavit to indicate the informant's credibility, honesty or reliability.

An affidavit which contains detailed information from informants (permitting an inference that

illegal activity was personally observed by the informants), police corroboration of an informant's

intelligence through its own independent investigation, or additional testimony by the affiant

helps to bolster and substantiate the facts contained within the affidavit. While individual facts

and statements themselves may not separately support a probable cause determination; a

reviewing court must weigh all of the components together because ‘[p]robable cause is the sum

total of [all] layers of information.’ ” (Citations omitted.) State v. Harry, 12th Dist. Butler No.

CA2008-01-0013, 2008-Ohio-6380, ¶ 20.

       {¶ 21}       The fact that the confidential informant had detailed knowledge of the interior of

Mitchell’s home, including specific areas where drugs and weapons were to be found (and were

found), coupled with the success of the informant’s drug buys, which were directly observed and
                                                                                            10


monitored by the police, indicate that the informant was truthful and reliable. Accordingly, we

conclude that the trial court erred in sustaining the motion to suppress. The police would not be

amiss, however, in incorporating a bit more information about the reliability of an informant.

Although “reliability is merely one factor to be considered in reviewing all of the averments in

the affidavit,” and failure to establish reliability is “no longer a fatal defect in a probable cause

analysis,” it is still a consideration. State v. Tuff, 11th Dist. Lake Nos. 2010–L–082 and

2010–L–083, 2011-Ohio-6846,              ¶ 36, citing State v. Smith, 11th Dist. Ashtabula

No.2004–A–0088, 2006–Ohio–5186, and Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527

(1983).

          {¶ 22}   The State’s final point is that Mitchell’s reliance on the Franks case, and the

trial court’s passing mention of Franks are misplaced. In this regard, the State contends that

Franks involves a situation in which a defendant makes a “substantial preliminary showing” that

an affiant has included a false statement in the affidavit for a warrant.

          {¶ 23}   In State v. Stropkaj, 2d Dist. Montgomery No. 18712, 2001 WL 1468905 (Nov.

16, 2001), we noted that “[a] search warrant affidavit that is facially sufficient may nevertheless

be successfully attacked if the defendant can show by a preponderance of the evidence that the

affiant made a false statement intentionally, or with reckless disregard for the truth.” Id. at * 2,

citing Franks, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and State v. Waddy,

63 Ohio St.3d 424, 441, 588 N.E.2d 819 (1992).

          {¶ 24}   In Stropkaj, we reviewed the testimony at the suppression hearing in order to

determine whether the alleged omissions of fact in the affidavit were known by the affiant or

were, in fact, misleading. Id. at * 3.    We stressed that:
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                  [W]hen a police officer reviews, for its accuracy, a paragraph in an

         affidavit that he knows is going to be used to apply for a search warrant, he has the

         same obligation to avoid misleading facts and omissions as the officer executing

         the affidavit. Although mere police negligence in checking or recording the facts

         relevant to a probable cause determination will not support looking beyond the

         four corners of the affidavit, intentionally misleading statements or omissions, or

         statements or omissions made in reckless disregard of their tendency to mislead

         the magistrate, will support looking beyond the four corners of the affidavit. Id.

         {¶ 25}    Mitchell made no effort to present evidence at the suppression hearing, and

relied solely on the content of the warrant. We, therefore, have no factual basis upon which to

decide whether the affiant made a false statement, intentionally, or with reckless disregard for the

truth.

         {¶ 26}    Based on the preceding discussion, the first assignment of error is sustained.



                                                  III.

         {¶ 27}    The State’s second assignment of error is as follows;

                  Because Detective Stout in [sic] objective reasonable reliance on Judge

         Hanna’s issuance of the search warrant, the “good faith” exception to the

         exclusionary rule applies.      The trial court’s suppression of the evidence,

         therefore, was improper.

         {¶ 28}    Under the second assignment of error, the State focuses on the “good-faith”

exception to the exclusionary rule. The State contends that even if we find a lack of probable
                                                                                           12


cause for issuing the search warrant, Detective Stout’s reliance on the warrant was objectively

reasonable.

       {¶ 29}    In view of our resolution of the first assignment of error, this assignment of error

is moot, and need not be addressed.

       {¶ 30}    The second assignment of error is overruled as moot.



                                         IV. Conclusion

       {¶ 31}    The State’s first assignment of error having been sustained and the second

assignment of error having been overruled as moot, the judgment of the trial court is reversed,

and this cause is remanded to the trial court for further proceedings.

                                          .............

DONOVAN and HALL, JJ., concur.



Copies mailed to:

Andrew T. French
George A. Katchmer
Hon. Barbara P. Gorman
