[Cite as State v. Gipson, 2009-Ohio-6234.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 5-09-19

        v.

JIMMY LEE GIPSON,                                         OPINION

        DEFENDANT-APPELLANT.




                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2008-CR-204

                                      Judgment Affirmed

                          Date of Decision: November 30, 2009




APPEARANCES:

        Michael B. Kelley for Appellant

        Mark C. Miller for Appellee
Case No. 5-09-19


SHAW, J.

      {¶1} The defendant-appellant, Jimmy Lee Gipson, appeals the May 12,

2009 judgment of the Common Pleas Court of Hancock County, Ohio, finding him

guilty of one count of illegal assembly or possession of chemicals for the

manufacture of drugs and sentencing him to seven years in prison.

      {¶2} The facts relevant to this appeal are as follows. On September 3,

2008, Detective Jason Seem and Detective Michael Swope of the Hancock County

Drug Task Force/METRICH Enforcement Unit (“the task force”) met with John

Fenstermaker to discuss his knowledge of a methamphetamine (“meth”) lab that

was being operated in McComb, Ohio.          Fenstermaker was referred to these

officers by Chief Greg Smith of the McComb Police Department. In exchange for

this information, the officers agreed not to pursue misdemeanor charges against

Fenstermaker, who had been found in possession of a marijuana plant by the

McComb police.

      {¶3} Fenstermaker revealed that Gipson was manufacturing and selling

meth from the home he shared with his girlfriend, Melissa Chapman, at 116 North

Street in McComb. He further stated that Gipson made the meth in his garage and

would sell it from his house, as well as his mother’s house at 111 North Todd

Street in McComb.     He also informed them that he had personally observed

Gipson make meth in the garage and described what he could recall of the



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manufacturing process for the officers. In addition, Fenstermaker told the officers

the names of various individuals who purchased pseudoephedrine for Gipson at

locations in the surrounding area.1

        {¶4} Based on this information, the officers drove to 116 North Street in

McComb. They saw a car parked in front of the house, and a check of the license

plate showed that it was registered to Melissa Chapman. They also checked the

criminal history of Gipson and found that the task force made two controlled buys

of meth from Gipson in 2003. Gipson was later convicted of two counts of

aggravated trafficking in drugs, one a felony of the second degree and the other a

felony of the fourth degree.

        {¶5} Members of the task force also went to a number of pharmacies in

Findlay, Ohio, to check the pseudoephedrine purchase logs.2 In several of these

logs, they discovered the names of some of the people Fenstermaker had given

them as providing pseudoephedrine for Gipson. Some of these individuals bought

pseudoephedrine multiple times on the same day at different pharmacies. They

also noticed that there was another pseudoephedrine purchaser with the same last

name as those provided by Fenstermaker and found that some license numbers


1
  Pseudoephedrine is a key ingredient in the manufacture of meth.
2
  The federal government has placed limits on the amount of pseudoephedrine that may be purchased by an
individual at any one time and how often a person may purchase pseudoephedrine in a month. In addition,
while a person does not need a prescription to purchase pseudoephedrine, he/she must produce a driver’s
license or state identification card in order to purchase pseudoephedrine. Also, pharmacies are required to
keep pseudoephedrine behind the counter and to maintain a log of all pseudoephedrine purchases and by
whom they were made, including the license number of the purchaser.


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given by certain purchasers from McComb were not actual license numbers or

were numbers assigned to other people. The officers also found Gipson’s name in

many of these logs. Gipson’s listed address in these logs was 116 North Street,

McComb, Ohio. The last of the purchases made by one of the people named by

Fenstermaker occurred on August 28, 2008.

       {¶6} On September 4, 2008, the officers performed surveillance on

Gipson’s home from 7:00 p.m. to 8:30 p.m. During this time, they witnessed a

large number of people at the home and saw many individuals coming and going

from the home. At some point, they saw a person known by them to be involved in

illegal drugs.

       {¶7} The following day, Detective Seem obtained a search warrant for

Gipson’s home. This warrant contained a provision that the warrant could be

executed in the daytime or nighttime. On September 7, 2008, at 4:43 a.m., the

task force, along with the clandestine laboratory suppression unit of the Ohio

Bureau of Criminal Identification and Investigation (“BCI”), executed the warrant.

Upon entering the home, Gipson, Chapman, Aretta Young, and three young

children were found, the adults were secured, and all six people were taken to a

designated area for decontamination. The home’s air quality was then checked by

two officers with special training in hazards associated with the operation of a




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meth lab. These officers wore protective gear and breathing equipment while they

examined the home for safety purposes.

       {¶8} Once the quality of the air was checked and the decision made that

protective gear and breathing equipment were no longer needed to safely be in the

home, a number of officers began searching the home. Several items used in the

manufacture of meth were found in the home, including lithium batteries,

pseudoephedrine tablets, lye, punched starter fluid cans, grinders with white

residue inside them, and a funnel with white residue inside it. They also found a

pipe in one of the bedrooms and two pipes in the attached garage that contained

meth residue in them. In the backyard, they located a fire ring with lithium

batteries and the remains of a number of blister packs of pseudoephedrine pills in

the ashes.

       {¶9} The officers also found a sealed black trash bag inside a garbage can

next to the garage. Upon opening the bag, a strong odor of ammonia was detected,

prompting the officers to re-dress in their protective gear. Found inside the bag

were latex gloves, filters, lithium metal strips from batteries, plastic bottles with

anhydrous cook in them, and an acid gas generator that was still off-gassing

(emitting smoke from the top of a plastic bottle due to the chemical reaction of the

acid and salt inside the bottle). Although he denied knowledge or ownership of




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the black trash bag and its contents and denied manufacturing meth, Gipson

admitted to the officers that many of the questioned items found were his.

       {¶10} Gipson was arrested and later indicted for one count of illegal

assembly or possession of chemicals for the manufacture of drugs, specifically

methamphetamine. The trial in this matter was held from March 30-April 1, 2009.

The State presented the testimony of several officers, Fenstermaker, and Melissa

Chapman and presented various exhibits, including a video recording of the

contents of the black trash bag that depicted the gas generator off-gassing. The

defense then presented the testimony of a number of witnesses, including Gipson.

Thereafter, the jury returned a verdict of guilty, and the trial court ordered a pre-

sentence investigation. On May 7, 2009, the trial court sentenced Gipson to seven

years in prison. This appeal followed, and Gipson now asserts three assignments

of error.

                          ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED BY FAILING TO FIND THAT
       THE SEARCH WARRANT PERTAINING TO GIPSON’S
       RESIDENCE LACKED PROBABLE CAUSE, AND BY
       FAILING TO FIND THAT THE SUBSEQUENT SEARCH,
       SEIZURE UNCONSTITUTIONAL, AND RESULTING
       TESTIMONY AND EVIDENCE PRESENTED AT TRIAL
       INADMISSIBLE PURSUANT TO THE FOURTH AND
       FOURTEENTH AMENDMENTS TO THE UNITED STATES
       CONSTITUTION, AND ARTICLE 1, SECTION 14 OF THE
       OHIO CONSTITUTION.




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                         ASSIGNMENT OF ERROR II

      THE TRIAL COURT VIOLATED GIPSON’S RIGHT TO DUE
      PROCESS UNDER THE FIFTH, SIXTH, AND FOURTEENTH
      AMENDMENTS      TO    THE     UNITED     STATES
      CONSTITUTION, AND ARTICLE 1, SECTION 10 OF THE
      OHIO CONSTITUTION WHEN IT UPHELD THE JURY
      VERDICT AS IT WAS NOT SUPPORTED BY THE
      SUFFICIENCY OF THE EVIDENCE AND WAS AGAINST
      THE MANIFEST WEIGHT OF THE EVIDENCE.

                         ASSIGNMENT OF ERROR III

      GIPSON WAS DENIED HIS CONSTITUTIONAL RIGHT TO
      EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE
      SIXTH AND FOURTEENTH AMENDMENTS TO THE
      UNITED STATES CONSTITUTION AND ARTICLE 1,
      SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.

      {¶11} Initially, this Court notes that the crux of each of Gipson’s three

assignments of error involves the search of Gipson’s home. Therefore, we elect to

address them together.

      {¶12} More specifically, Gipson asserts that the warrant to search his home

was issued without probable cause. In addition, he maintains that the execution of

the warrant was performed in the nighttime without a sufficient basis and in

violation of the “knock-and-announce” rule. Thus, he contends that the evidence

found in his home, upon which the State’s case was based, should have been

suppressed. Absent this evidence, Gipson asserts, there was insufficient evidence

to find him guilty and, consequently, the verdict of guilty was against the manifest

weight of the evidence.     However, Gipson’s trial counsel failed to move to


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suppress this evidence. As such, he has waived all but plain error as to this issue.

See State v. Jones, 91 Ohio St.3d 335, 346, 744 N.E.2d 1163, 2001-Ohio-57; State

v. Gordon (1971), 28 Ohio St.2d 45, 276 N.E.2d 243; Holman v. Grandview Hosp.

& Med. Ctr. (1987), 37 Ohio App.3d 151, 157, 524 N.E.2d 903.

       {¶13} In order to find plain error, there must be a deviation from a legal

rule, the error must be an “obvious” defect in the trial proceedings, and the error

must affect a defendant’s “substantial rights.” State v. Barnes, 94 Ohio St.3d 21,

27, 759 N.E.2d 1240, 2002-Ohio-68. Reversal on plain error is to be used “with

the utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage” of justice. Id. Because of the failure by his trial counsel to

move to suppress the evidence obtained from the search of Gipson’s home and this

Court’s inability to reverse this judgment absent plain error, Gipson also asserts

that his trial counsel was ineffective for failing to raise this issue.

       {¶14} Our review of these issues begins by noting that attorneys licensed

by the State of Ohio are presumed to provide competent representation. State v.

Hoffman (1998), 129 Ohio App.3d 403, 407, 717 N.E.2d 1149. An ineffective

assistance of counsel claim requires proof that trial counsel’s performance fell

below objective standards of reasonable representation and that the defendant was

prejudiced as a result. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d

373, paragraph two of the syllabus. As to the first prong of the test, courts are to



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afford a high level of deference to the performance of trial counsel. Bradley, 42

Ohio St.3d at 142, 538 N.E.2d 373. To show that a defendant has been prejudiced

by counsel’s deficient performance, the defendant must prove that there exists a

reasonable probability that, but for counsel’s errors, the outcome at trial would

have been different.     Id. at paragraph three of the syllabus.     “Reasonable

probability” is a probability sufficient to undermine confidence in the outcome of

the trial. Id. at 142.

       {¶15} The United States Supreme Court has held that the “failure to file a

suppression motion does not constitute per se ineffective assistance of counsel.”

Kimmelman v. Morrison (1986), 477 U.S. 365, 384, 106 S.Ct. 2574, cited in State

v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52, 2000-Ohio-448. There must

also be a reasonable probability that the motion will be successful. See State v.

Robinson (1996), 108 Ohio App.3d 428, 433, 670 N.E.2d 1077; State v. Ligon , 3rd

Dist. No. 4-2000-25, 2001-Ohio-2231.         Thus, this Court’s determination of

whether counsel for Gipson was ineffective relies upon whether there was a

reasonable probability that a motion to suppress in this case would have been

successful.

       {¶16} The Ohio Supreme Court has previously held that

       [i]n 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


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Case No. 5-09-19


      affidavit before him * * * there is a fair probability that
      contraband or evidence of a crime will be found in a particular
      place.”

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

syllabus, quoting Illinois v. Gates (1983), 462 U.S. 213, 238-239, 103 S.Ct. 2317.

In Gates, the Court stated that the definition of probable cause “‘means less than

evidence which would justify condemnation * * *. It imports a seizure made

under circumstances which warrant suspicion.’” Gates, 462 U.S. at 235, quoting

Locke v. United States (1813), 11 U.S. (7 Cranch) 339, 348, 3 L.Ed. 364. Thus,

“[f]inely-tuned standards such as proof beyond a reasonable doubt or by a

preponderance of the evidence, useful in formal trial, have no place in the

magistrate’s decision. * * * it is clear that ‘only the probability, and not a prima

facie showing, of criminal activity is the standard of probable cause.’” Gates, 462

U.S. at 235, quoting Spinelli v. United States (1969), 393 U.S. 410, 419, 89 S.Ct.

584, abrogated by Gates, supra.

      {¶17} When reviewing a magistrate’s or judge’s determination of probable

cause justifying the issuance of a search warrant under the totality-of-the-

circumstances analysis of Gates, an appellate court must simply “ensure that the

magistrate had a substantial basis for concluding that probable cause existed.”

George, 45 Ohio St.3d at paragraph two of the syllabus. In fact, often a particular

case may not be easy to determine when an affidavit demonstrates the existence of



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probable cause. Accordingly, the issuing judge or magistrate is to be accorded

great deference, “and doubtful or marginal cases in this area should be resolved in

favor of upholding the warrant.” Id., citing Gates, supra.

       {¶18} Here, Gipson contends that the affidavit in support of the warrant did

not establish probable cause because there was no indication that Fenstermaker,

the confidential informant providing the information that meth was being

produced in the home, was reliable. In addition, he asserts that the police failed to

corroborate the information provided to them by Fenstermaker.

       {¶19} “[W]ith regard to confidential or anonymous informants, their

veracity, reliability and basis of knowledge are all highly relevant in determining

probable cause, so ‘[t]here must be some basis in the affidavit to indicate the

informant’s credibility, honesty or reliability.’” State v. Pustelnik, 8th Dist. No.

91779, 2009-Ohio-3458, at ¶ 22, quoting State v. Harry, 12th Dist. No. CA2008-

01-013, 2008-Ohio-6380 (internal citations omitted). However, a failure of the

affiant to attest to the informant’s veracity or reliability based on past experience

“does not negate probable cause if there is * * * some other indicia of reliability.”

Pustelnik, supra, citing Gates, supra. Thus, an identified informant who provides

corroborated information may establish probable cause. See State v. Martin, 8th

Dist. No. 89030, 2007-Ohio-6062.




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        {¶20} In    this    case,   Fenstermaker       personally    witnessed     Gipson

manufacturing meth in his North Street home, specifically in the garage at the rear

of the home. However, Fenstermaker was unknown to the task force officers to

whom he divulged this information concerning the meth production in Gipson’s

home.    Therefore, Det. Seem, the affiant, could not attest to Fenstermaker’s

veracity. Instead, he and other officers elected to conduct further investigation

into Fenstermaker’s assertions.

        {¶21} In this investigation, they went to nine different pharmacies in the

Findlay area to examine each store’s pseudoephedrine logs. In these logs, they

discovered the names of some of the people that Fenstermaker provided to them,

such as Casey Brumbaugh and Paul Parker. Fenstermaker had also given them the

names Joe and Nick Zamora. Although neither one of their names were found, an

individual by the name of Jose (the last name was illegible) made a

pseudoephedrine purchase in April of 2008.              Jose listed 116 North Street,

McComb, Ohio, as his address but the license number was false. Further, the

name Janie Zamora was found four times, two of which occurred on September 2,

2008.3 Another individual, Aretta Young, made a purchase on March 24, 2008,

and listed her address as 116 North Street, McComb, Ohio.4 The officers also

found seven different purchases of multiple packs of pseudoephedrine by Gipson,

3
 At trial, Gipson testified that Janie Zamora is his sister and is married to Nick Zamora.
4
  On the day of the search, Aretta Young was found inside the home. She is Gipson’s maternal
grandmother.


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himself, from March 29, 2008, until August 14, 2008. In these logs, Gipson listed

his address as 116 North Street, McComb, Ohio.

      {¶22} The officers also checked Gipson’s criminal history, which included

two counts of aggravated trafficking in drugs, specifically meth.       They also

checked the plate number of the vehicle they saw parked in front of the North

Street home. This vehicle was registered to Melissa Chapman, who Fenstermaker

said lived there with Gipson. They also conducted surveillance on the home and

noticed a large number of people at the home and many people coming and going

from the home. One of these people was Darrin Wright, a man known to the

detectives as being involved in illegal narcotics.     In addition, Fenstermaker

informed the officers that Gipson would also sell meth from his mother’s home at

111 North Todd Street in McComb, Ohio. On August 20, 2008, only two weeks

before Fenstermaker came forward with his information, the task force conducted

a controlled buy of both marijuana and meth from David McDill and his unknown

supplier at 111 North Todd Street in McComb.

      {¶23} All of this information corroborated Fenstermaker’s allegations.

Additionally, Fenstermaker was not an anonymous tipster. He spoke in person

with the detectives and much of his information was independently corroborated.

Thus, this corroboration demonstrates the reliability of Fenstermaker’s statements.

In light of the totality of the circumstances presented to the issuing judge, the



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judge had a substantial basis for concluding that probable cause existed to issue

the warrant.

        {¶24} However, our inquiry does not end upon concluding that the warrant

was based upon probable cause. Gipson further contends that the evidence seized

during the search should be suppressed because the trial court had no basis for

permitting the execution of the warrant during the nighttime and because the

officers who executed the warrant did so in violation of the “knock-and-announce”

rule.

        {¶25} The Fourth Amendment to the United States Constitution requires

law enforcement officers to execute search warrants in a reasonable manner. The

Fourth Amendment protects “the right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.”     In

determining whether law enforcement officers executed a search warrant in a

reasonable manner, one aspect that courts must consider is the procedure in which

the search warrant was executed.       The United States Supreme Court has

interpreted the Fourth Amendment to incorporate the common-law principle of

“knock-and-announce” prior to entering a residence. Wilson v. Arkansas (1995),

514 U.S. 927, 115 S.Ct. 1914. The Court held that whether law enforcement

officers properly complied with the knock-and-announce procedures forms part of

the reasonableness inquiry under the Fourth Amendment. Id.



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        {¶26} Ohio’s General Assembly has codified the “knock-and-announce”

rule. See R.C. 2935.12(A). This statute permits an officer who is executing an

arrest warrant or a search warrant to “break down an outer or inner door or

window of a dwelling house or other building, if, after notice of his intention to

make the arrest or to execute the warrant or summons, he is refused

admittance[.]”5       Id.    There are also other exigent circumstances that permit

nonconsensual entry into a person’s home, such as the “hot pursuit” exception.

See State v. Stuber, 150 Ohio App.3d 200, 779 N.E.2d 1090, 2002-Ohio-6309, at ¶

9, citing Payton v. New York (1980), 445 U.S. 573, 100 S.Ct. 1371.                              Such

intrusions will not render a search unreasonable to warrant the application of the

exclusionary rule.

        {¶27} Recently, the United States Supreme Court had the opportunity to

once again address the “knock-and-announce” rule in determining whether the

exclusionary rule is an appropriate sanction for a violation of the knock-and-

announce requirement. See Hudson v. Michigan (2006), 547 U.S. 586, 126 S.Ct.

2159. In making its determination, the Court reiterated its previous holdings that

the exclusionary rule is “a last resort, not a first impulse” and was created to

“vindicate” the citizen’s right to shield their persons, houses, papers, and effects


5
 This section also permits the “knock-and-announce” rule to be waived in accordance with R.C. 2933.231,
which requires the search warrant affidavit to include certain averments. However, no such averments
were made in the search warrant currently at issue. Thus, R.C. 2933.231 is inapplicable here.



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“from the government’s scrutiny” absent a warrant. Id. at 592-593. The Court

further recognized that the “knock-and-announce” rule was created for the

“protection of human life and limb,” the protection of property, and the protection

of “those elements of privacy and dignity that can be destroyed by a sudden

entrance[.]” However, it also noted that the “rule has never protected * * * one’s

interest in preventing the government from seeing or taking evidence described in

a warrant.” Id. at 594. Thus, the Court determined that a violation of the “knock-

and-announce” rule does not necessarily warrant the suppression of all evidence

obtained pursuant to a valid warrant. Id.

      {¶28} The Ohio Supreme Court adopted the holding of Hudson eight

months later in State v. Oliver, 112 Ohio St.3d 447, 860 N.E.2d 1002, 2007-Ohio-

372. In Oliver, the Court held that before employing the exclusionary rule as a

sanction for a “knock-and-announce” violation, a court must consider the toll of

suppressing evidence and implement the exclusionary rule “only in cases where its

power to deter police misconduct outweighs its costs to the public.” Id.

      {¶29} In this case, very little evidence was presented at trial as to the

manner and mode of entry in the execution of the search warrant. In fact, the only

evidence presented on this issue was the testimony of Det. Seem, who testified as

follows:

      What my role in the entry I believe I was the third or fourth
      person into the residence. As we made entry into, it was a knock


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       and announce search warrant which basically means we
       knocked on the door, loudly yelled police, sheriff’s office,
       announced our presence, waited for someone to come to the
       door. Nobody came to the door and we were able to see a white
       male take off running through the residence towards the back.
       At that point, for our safety, we forced entry into the room.

(Trial Trans. p. 303.) Based on this testimony, Gipson contends that the “knock-

and-announce” rule was violated by the officers’ failure to announce their purpose,

i.e. execution of a search warrant, and to wait a sufficient amount of time prior to

entering.

       {¶30} Clearly, at the jury trial in this matter the State was not focused on

developing Det. Seem’s testimony, or any other witness’ testimony, as to the

actual manner and mode of entry as this was not a suppression hearing and the

prosecutor had no notice that the search was being challenged on this basis. Thus,

this Court’s ability to adequately analyze whether the search warrant was properly

executed in this regard is hampered by a lack of knowledge of exactly what was

said by the officers who were knocking, the length of time between knocking and

announcing and then forcing entry, and how they actually executed their entry.

However, it does appear that the officers knocked on the door, announced who

they were, and did not force entry into the home until they saw an adult male

running to the back of the home. According to the affidavit, the garage was

located in the back of the home and was where the meth was being produced. The

man could have been attempting to destroy evidence or attempting to access a


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weapon. Further, the evidence possibly being destroyed was highly dangerous and

the improper handling of this evidence could have placed everyone’s safety in

jeopardy. Therefore, forced entry seems to be justified in this case.

       {¶31} Nevertheless, even assuming arguendo, that the officers violated the

“knock-and-announce” rule, we do not find that this failure warrants the

application of the exclusionary rule.          To the contrary, the officers were

investigating a possible meth lab in which various chemicals and the fumes

therefrom created hazards to all those inside the home and in close proximity to

the home. Thus, closing this lab and properly disposing of any harmful chemicals

was vitally important for the safety of the public, as well as Gipson’s children. As

such, the deterrent effect for any alleged police misconduct in this case, which

appears to have been minimal, by no means outweighs the costs to the public if we

were to apply the exclusionary rule in this case. Therefore, the exclusionary rule

is an inappropriate sanction for the alleged violation of the “knock-and-announce”

rule in this case.

       {¶32} As to the issue of the nighttime warrant, the Revised Code states:

“The command of the warrant shall be that the search be made in the daytime,

unless there is urgent necessity for a search in the night, in which case a search in

the night may be ordered.”       R.C. 2933.24(A).      Additionally, Crim.R. 41(C)

provides in pertinent part that “[t]he warrant shall be served in the daytime, unless



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the issuing court, by appropriate provision in the warrant, and for reasonable cause

shown, authorizes its execution at times other than daytime.” The term “daytime”

is used in this rule to mean the hours from 7:00 a.m. to 8:00 p.m. Crim.R. 41(F).

       {¶33} An issuing judge’s decision to authorize a nighttime search will not

be disturbed absent a showing by the complaining party that the judge abused his

discretion. State v. Eichhorn (1975), 47 Ohio App.2d 227, 353 N.E.2d 861; State

v. Marko (1973), 36 Ohio App.2d 114, 303 N.E.2d 94. In order to find an abuse of

discretion, “the result must be so palpably and grossly violative of fact or logic

that it evidences not the exercise of will but the perversity of will, not the exercise

of judgment but the defiance of judgment, not the exercise of reason but instead

passion or bias.” Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 662

N.E.2d 1, 1996-Ohio-159.

       {¶34} In this case, the affidavit contained a provision that stated: “Request

for Nighttime Search. Affiant further states that a search in the nighttime (the

hours between 8:00 P.M. and 7:00 A.M.) is warranted and requested, due to the

following facts:” No facts followed that statement, only the concluding signature

of Detective Seem and the notarization by the issuing judge. Nevertheless, the

warrant contained a provision commanding law enforcement “to enter, in the

daytime, or in the nighttime, into the residence . . .” Thus, the issuing judge

permitted a nighttime search.



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       {¶35} Although the affidavit neglected to specify what facts warranted a

nighttime search, a review of the affidavit in its entirety reveals a number of

relevant facts. For instance, the affidavit contained information about the people

who frequented Gipson’s home. At least two of these individuals had violent

histories and had “approach with caution” entries in their computerized criminal

histories. One of these individuals also had prior offenses for resisting arrest and

obstructing official business. Further, Gipson, himself, was a convicted felon for

trafficking in drugs. The officers also noted several people coming and going

from the home and a large number of people were present after 8:00 p.m. when the

home was under surveillance. Moreover, the offense being currently investigated

was the operation of a meth lab. As previously noted, manufacturing meth creates

a highly dangerous situation. In addition, the Ohio Supreme Court, as well as

many other courts, has noted that an illegal drug transaction in today’s society

“reasonably warrants the conclusion that a suspected dealer may be armed and

dangerous.” State v. Evans, 67 Ohio St.3d 405, 413, 618 N.E.2d 162, 1993-Ohio-

186; see also, State v. Dickerson, 179 Ohio App.3d 754, 758, 903 N.E.2d 697,

2008-Ohio-6544.

       {¶36} Given these circumstances, we cannot find that the trial court abused

its discretion in determining that the affidavit contained sufficient information to

demonstrate that night entry into Gipson’s home was necessary. Allowing a



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nighttime search in this case afforded protection to the officers executing the

warrant, as well as the occupants of the home and those in close proximity,

because of the dangers attendant with the operation of a meth lab and the

background of those who lived in and frequented the home. Thus, the issuing

judge did not err in authorizing a nighttime search.

       {¶37} Even assuming arguendo that a nighttime search was not warranted,

we do not find this failure warrants the application of the exclusionary rule, for the

same reasons we previously provided in our discussion as to the application of the

exclusionary rule with “knock-and-announce” violations.

       {¶38} For all of the foregoing reasons, no reasonable probability exists that

the motion to suppress would have been successful. In light of this determination,

trial counsel’s decision not to file a motion to suppress did not constitute

ineffective assistance of counsel, and the first and third assignments of error are

overruled.

       {¶39} As for the assignment of error challenging the sufficiency and

manifest weight of the evidence, Gipson’s argument rests upon the exclusion of

the evidence seized during the search of his home. Without this evidence, he

asserts, the evidence was insufficient as to the sole count of the indictment and the

verdict of guilty was against the manifest weight of the evidence. He does not

assert that the evidence was insufficient and that the verdict of guilty was against



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the manifest weight of the evidence when considering the evidence found in his

home. Given our decision that the evidence from the search should not have been

suppressed and was properly admitted into evidence, Gipson’s second assignment

of error is rendered moot and, accordingly, is overruled.

       {¶40} For these reasons, the judgment of the Common Pleas Court of

Hancock County, Ohio, is affirmed.

                                                            Judgment Affirmed

PRESTON, P.J., and ROGERS, J., concur.

/jlr




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