State v. Cole, 2009 Ohio 6131 (Ohio App. 11/20/2009), Appellate No. 23058.
| Decision Date | 20 November 2009 |
| Docket Number | Appellate No. 23058. |
| Citation | 2009 Ohio 6131 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Tiffany Cole, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Mathias H. Heck, Jr., by Johnna M. Shia, Atty. Reg. #0067685, 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-Appellee.
Anthony S. Vannoy, Atty. Reg. #0067052, 130 West Second Street, Suite 1600, Dayton, Ohio 45402, Attorney for Defendant-Appellant.
{¶ 1} Defendant-appellant Tiffany Cole appeals from her conviction and sentence, following a no-contest plea, to one count of Having a Weapon Under a Disability. Cole contends that the trial court erred when it overruled her motion to suppress evidence obtained as a result of the search of her apartment, pursuant to a search warrant.
{¶ 2} We agree with Cole and the trial court that the fact that an individual — not Cole — was found driving a vehicle containing illegal drugs, and that there was evidence that this individual was a resident in her apartment, without more, is insufficient to establish probable cause to believe that evidence of criminal activity might be found within Cole's apartment. But we agree with the State and the trial court that the closeness of this issue, and its novelty in Ohio, results in the searching police officers having relied, in good faith, upon the search warrant issued by a neutral and detached magistrate, who had been advised of the facts.
{¶ 3} Consequently, the trial court correctly determined that the evidence should not be excluded, under the good-faith-exception doctrine established in United States v. Leon (1984), 468 U.S. 897, 104 S.Ct. 3405, ___ L.Ed.2d ___, and the judgment of the trial court is Affirmed.
{¶ 4} Dayton Police Officer Dan Zweisler stopped a vehicle being driven by Daniel Jackson for a minor traffic violation while on patrol one evening in September, 2007. Zweisler noticed a strong odor of marijuana coming from the vehicle. Zweisler's drug-sniffing dog, Zorn, alerted to the driver's side door of the vehicle. A search of the vehicle resulted in the seizure of substantial quantities of marijuana, and drug paraphernalia.
{¶ 5} Also found in the vehicle were: a Vectren and Dayton Power and Light bill for 9941 White Court Apt. K, in Miamisburg, Ohio; a Northtown furniture receipt made out to Daniel Jackson with a delivery address of 9441 White Pine Court Apt. K; a Time Warner Cable bill showing 9441 White Pine Court Apt. K as the address; and Montgomery County Assistance paperwork in the name of Tiffany Cole, residing at 9941 White Pine Court Apt. K.1
{¶ 6} Detective Rodney Barrett prepared an affidavit for a warrant to search 9441 White Pine Court Apt. K, in Miamisburg, for evidence of sales of illegal drugs, and submitted it to Miamisburg Municipal Court Judge Robert Messham. Judge Messham signed the warrant, which was executed the same day as the stop of Jackson. The apartment was later determined to have been in Cole's name. The search resulted in the seizure of a handgun, several digital scales, two bags of marijuana, three large plastic bags with marijuana residue, a vacuum sealer with marijuana residue on it, a plastic cup and a bowl with marijuana residue on them, and substantial cash.
{¶ 7} Cole was arrested and charged with Having a Weapon While Under a Disability and Possession of Drug Paraphernalia.
{¶ 8} Cole moved to suppress the evidence, contending that it was obtained as the result of an unlawful search of her apartment. Following a hearing, the trial court overruled Cole's motion to suppress. Thereafter, Cole pled no contest to the charge of Having a Weapon While Under a Disability, and the Possession of Drug Paraphernalia charge was dismissed. Cole was found guilty, and was sentenced accordingly.
{¶ 9} From her conviction and sentence, Cole appeals.
{¶ 10} Cole's sole assignment of error is as follows:
{¶ 11} "THE TRIAL COURT ERRED IN FINDING THAT THE SEARCH OF 9441 WHITE PINE COURT WAS SUPPORTED BY THE `GOOD FAITH' EXCEPTION TO THE EXCLUSIONARY RULE."
{¶ 12} The trial court, in the person of the Honorable Michael L. Tucker, analyzed the issues as follows:
{¶ 13} "Probable Cause Standard
{¶ 14} "The determination of probable cause under the Fourth Amendment is a fluid, common-sense, and non-technical process. Brinegar v. U.S. (1949), 338 U.S. 16, 69 S.Ct. 1302. This concept was conveyed by the Brinegar Court as follows:
"In dealing with probable cause . . ., as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Brinegar at 175.
{¶ 15} "This practical, common-sense determination is based upon the totality of circumstances, and, in the end, the decision is premised upon whether there is a fair probability contraband or other evidence of a crime will be discovered in the place to be searched. Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317; State v. George (1983), 45 Ohio St.3d 325, 544 N.E.2d 640. A fair probability, it is noted, is not to be confused with the greater weight of the evidence or any other mathematical formulation. Illinois v. Gates, supra.
{¶ 16} "The initial important factor in this case is whether, based upon the totality of circumstances presented to Judge Messham, there was a fair probability evidence of the crimes of drug trafficking and/or drug possession would, on September 20, 2007, be found at 9144 [sic] White Pine Court, Apartment K. Sgro v. U.S. (1932), 287 U.S. 206, 53 S.Ct. 138. This Court has not found any Ohio cases which discuss the specific issue presented, but two non-Ohio cases are helpful in the analysis of this quite interesting issue.
{¶ 17} "The first case is State [of] Washington v. Thein (1999), 138 Wn.2d 133, 977 P.2d 582. In this case the Washington Supreme Court reviewed whether probable cause to search a defendant's home was present when the supporting affidavit, in essence, outlined how the facts were consistent with how drug dealers normally operate. The affidavit also included the statements that `it is a common practice for drug traffickers to store at least a portion of their drug inventory . . . in their . . . residences.' Thein at 139. The affidavit further indicated drug traffickers also routinely maintain records relating to drug trafficking in their homes.
{¶ 18} "The Thein court, though noting there is a dissenting view (citing United States v. Pitts (9th Cir., 1993), 6 F.3d 1366, 1369, where the Court stated `in the case of drug dealers evidence is likely to be found where the dealers live[.]'), ruled the generalizations contained in the affidavit were not sufficient to allow the issuing judge to conclude there was a fair probability evidence of drug trafficking would be discovered in the defendant's home. The Thein court, instead, concluded the material presented to a judge must establish a specific factual basis (as opposed to generalities) from which the judge is able to conclude there is a fair probability that evidence of the suspected illegal activity will be discovered. Without such a factual basis, the necessary `reasonable nexus is not established . . . .' Id. at 147. The Thein Court, without discussion of the good faith exception, ordered suppression.
{¶ 19} "The second case, State of Arkansas v. Yancey, generated an intermediate appellate decision (71 Ark. App. 280, 30 S.W.3d 117) and an Arkansas Supreme Court decision (345 Ark. 103, 44 S.W.3d 315). The facts in Yancey are close to the facts presented in this case, and the analysis of each court, though reaching different results, is helpful. In this case an Arkansas Game and Fish Officer observed the defendants (Mr. Cloud and Mr. Yancey) in a remote, wooded area watering suspected marijuana plants. The officer followed the individuals back to the highway and observed the individuals drive away in a Jeep. The officer followed the Jeep, and, ultimately, stopped the Jeep in front of Cloud's home. Cloud and Yancey told the officer they had been frogging, but the officer's observations (no frogging equipment — whatever such equipment may be — dry hip boots, and the presence of what appeared to be watering jugs) were inconsistent with a frogging expedition. The officer, at this point, allowed Cloud and Yancey to proceed.
{¶ 20} "The officer, the next day and with the help of the local Sheriff's department, traveled to the location where the officer had observed Cloud and Yancey's watering activity. Three marijuana plants were removed, with surveillance being maintained on the remaining plants. When, in three days, no one appeared, the remaining plants were harvested. The Fish and Game officer, thereafter, prepared an affidavit in order to obtain a search warrant for each defendant's home. The affidavit chronicled the above indicated facts, and, additionally, noted that Mr. Cloud, over a several year period, had been convicted for possession of `controlled substances.' 71 Ark. App. 285 (quoting affidavit). A municipal judge, with this information, issued a search warrant for each defendant's home. Marijuana was found at each home triggering, of course, the indictments which brought the case to the courts for review.
{¶ 21} "The intermediate appellate court (71 Ark. App. 280) ruled that probable cause to search the homes existed. The court's rationale for this conclusion is summarized as follows:
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