State v. Coy Randall Troutman, 94-LW-4745

• Decision Date: 06 July 1994
• Docket Number: 93CA005686,93CA005688,94-LW-4745,93CA005687
• Parties: STATE OF OHIO, Appellee v. COY RANDALL TROUTMAN, Appellant C.A
• Court: Ohio Court of Appeals

STATE OF OHIO, Appellee v. COY RANDALL TROUTMAN, Appellant

Nos. 93CA005686, 93CA005687, 93CA005688.

94-LW-4745 (9th)

Court of Appeals of Ohio, Ninth District Lorain

July 6, 1994

APPEALS FROM JUDGMENTS ENTERED IN THE COMMON PLEAS COURT COUNTY OF LORAIN, OHIO CASE NOS: 93CRO43803, 92CRO42472, 92CRO42762

These causes were heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

DECISION

BAIRD J.

These causes come before the court upon the appeal of Coy R Troutman from his conviction in the Lorain County Court of Common Pleas on one count of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), two counts of theft in violation of R.C. 291 3.02(A)(1), two counts of receiving stolen property in violation of R.C. 2913.51(A) one count of possession of marijuana in violation of R.C 2925.03(A)(9), one count of possession of criminal tools in violation of R.C. 2923.24(A), and two counts of aggravated trafficking in marijuana in violation of R.C. 2925.03(A)(7).

On August 18, 1992, Appellant was indicted by The Lorain County Grand Jury on the first seven counts and charged again on the same seven counts in an amended indictment on June 8, 1993. On October 20, 1992, Appellant was indicted on two counts of aggravated trafficking in marijuana. The cases were consolidated for trial and tried to the court, rather than to a jury, at Appellant's request.

On July 9, 1993, Appellant moved to suppress evidence obtained in searches conducted by Lorain County law enforcement officers on June 26 and July 7, 1992. With respect to the June 26 search, testimony at a pretrial suppression hearing indicated that two search warrants Are issued by the Lorain County Court of Common Pleas, one on June 22, 1992 and one on June 26, 1992, and that the June 26 search was conducted pursuant to the warrant issued on June 26. The only warrant produced by the State was dated June 22, 1992 on the face of the warrant but incorporated an attached affidavit dated and signed by Judge Kosma Glavas on June 26, 1992. The June 26 affidavit contained 33 double-spaced pages of information gathered by police prior to June 22, plus three single-spaced paragraphs of information relating to June 26 information and events, sworn to by Captain Dennis Cavanaugh of the Lorain County Sheriffs Department, and added to the document. The affidavit was signed by Captain Cavanaugh and by Judge Glavas on June 26. The search warrant indicated that probable cause existed to search premises; a barn, automobiles and people at Quarry Road at State Route 511, the premises and residence of Appellant on Ethel Avenue, a blue Freightliner semitractor on Gladys and Elmwood Avenues, and a semitractor/trailer driven from Ford Motor Company with a suspected load of Ford parts at wherever location it was followed and stopped. The warrant authorized a search for cash proceeds of theft, records necessary to carry on an interstate theft ring, stolen items listed in the affidavit, including property stolen from Ford Motor Company on June 19 or June 20, firearms, racks and packing materials. The affidavit recited documented thefts of truck engines, air conditioner compressors, transmissions, radios, wiring harnesses, tires, gear boxes, and selectors. A confidential informant was cited as indicating that Appellant was using his tractors, trailers and trucks to transport the stolen goods and that Appellant had buried metal part racks and packing materials at the Ethel Avenue address. Stolen property seen by the informant at the Quarry Road property, as recited in the affidavit, included an electric hoist, a Ford transmission, harnesses, wrenches, an IROC Camaro, a dump truck bed, and tires. Additionally, the affidavit requested permission to seize weapons and search all vehicles owned by Appellant that were used or may have been used in thefts as set forth in the affidavit.

Another warrant was issued on July 7, 1992 to search the Ridgeview Garage and to seize and search a Haulmark trailer located on the premises. The affidavit attached to the July 7 warrant was signed by Captain Cavanaugh on July 7 and recited that the trailer had been used for drug trafficking, theft, receiving stolen property, and possession of criminal tools. The July 7 affidavit incorporated the June 26 affidavit-by reference.

in conducting the searches, the sheriff's department also seized video recorders, a video charger, a cellular phone, a video camera, keys, and photos. Testimony at the suppression hearing indicated that law enforcement officers had asked Appellant for receipts for the video equipment-but none could be provided and that certain other items were thought to be used in the thefts or the property of Ford not specifically itemized in the affidavit. Testimony indicated that the cellular phone was believed to be used to carry out the thefts and that the photos 'were seized as evidence of ownership and use of the properties relative to the forfeiture sought by the State. Further testimony indicated keys were taken in conjunction with stolen cars found on the premises. A Pontiac Grand Am, bearing no vehicle identification numbers ("BIN") was seized from Quarry Road, as well as parts, tools, and a generator. Other vehicles and parts seized at Quarry Road were alleged by police to be either missing BIN numbers or were found to be stolen after a check of BIN numbers that were in plain view. Officers searching Ethel Avenue, aware that stolen vehicles had been found at Quarry Road, also checked vehicles at Ethel Avenue. Officers testified that they had a good faith belief that everything seized was evidence of ongoing criminal activity.

Testimony at trial by Dennis Clotz, materials manager at Ford Motor's Lorain Assembly Plant, indicated that the market value of items stolen from Ford was $3,841,756. Mr. Clotz had not prepared a replacement cost analysis of items stolen from Ford but indicated that the replacement cost to Ford was much more than $100,000. Other testimony indicated that the value of the gears alone was in excess of $100,000. One of Appellant's co-conspirators also testified that he paid Appellant $600,000 for $5 million in parts.

With respect to the drug possession count, the Lorain County Drug Task Force paid co-conspirators of Appellant $40,000 for thirty pounds of marijuana. Five thousand dollars of the money paid by Lorain County was recovered. Testimony of a co-conspirator of Appellant indicated that the marijuana used in the sale came from Appellant and that most of the unrecovered money was turned over to Appellant.

Appellant appeals his convictions, asserting seven assignments of error.

Assignment of Error I

'THE TRIAL COURT ERRED TO ThE PREJUDICE OF APPELLANT, AND IN VIOLATION OF O.R.C. §2933.24, ARTICLE l, CRIM. R. 41, ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, AND THE FOURTH AND FOURTEENTH AMENDMENTS OF THE CONSTITUTION OF THE UNITED STATES, WHEN IT DENIED APPELLANTS MOTION TO SUPPRESS."

Appellant contends that the warrant used in the June 26 search was defective on its face because of the discrepancy in the dates, thus making the officers' reliance on the warrant unreasonable. Appellant further contends that items were seized which were not described in the warrant, making the search general and exploratory in violation of Article I, Section 10, of the Ohio Constitution and the Fourth and Fourteenth Amendments to the United States Constitution.

Ernestine Bell, a deputy sheriff assigned to the Lorain County Drug Task Force who participated in the June 26 search, testified at the suppression hearing that two warrants had been issued, one on June 22 and one on June 26, 1992 and that she read the affidavits prior to conducting the search. Officer Bell further testified that the June 26 affidavit was nearly identical to the June 22 affidavit except for the additional three paragraphs at the end.

The Fourth Amendment provides that

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated and no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Where evidence has been seized in violation of the search and seizure protection of the Fourth Amendment, the illegally obtained evidence cannot be used at trial. Known as the "exclusionary rule," this rule is also applicable to state searches and seizures. Mapp v. Ohio (1961), 367 U.S. 643, 6 L.Ed.2d 1081.

Crim. 41(C) governs the issuance and contents of a search warrant and provides in part that:

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. * * *

Upon review, an appellate court "is to determine whether the court's findings are supported by competent, credible evidence." State v. Self (1990), 56 Ohio St.3d 73, 80; State v. Williams (1986), 23 Ohio St.3d 16, 19.

The exclusionary rule should not be applied to suppress evidence' obtained by police officers acting in objectively reasonable, good faith reliance on a search warrant issued by a detached and neutral magistrate. State v. Wilmoth (1986), 22 Ohio St.3d 251, paragraph one of the syllabus, citing United States v. Leon (1984), 468 U.S. 897, 82 L.Ed.2d 677. Suppression is not required in all cases where the issuance of a warrant fails to conform to Crim.R. 41. Wilmoth at 263 in determining whether evidence seized as the result of a search should be suppressed:

Only a 'fundamental' violation of Rule 41 requires automatic suppression, and a violation is 'fundamental'

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