State v. Gales, 77209.

• Decision Date: 16 April 2001
• Docket Number: No. 77209.,77209.
• Citation: 143 Ohio App.3d 55,757 NE 2d 390
• Parties: The STATE of Ohio, Appellee, v. GALES, Appellant.
• Court: Ohio Court of Appeals

143 Ohio App.3d 55

757 NE 2d 390

The STATE of Ohio, Appellee, v. GALES, Appellant.^*

No. 77209.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided April 16, 2001.

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William D. Mason, Cuyahoga County Prosecuting Attorney, and Jose Torres-Ramirez, Assistant Prosecuting Attorney, for appellee.

James R. Willis and Myron P. Watson, for appellant.

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TIMOTHY E. MCMONAGLE, Presiding Judge.

Defendant-appellant Maurice Gales appeals from his conviction and sentence entered after the trial court accepted his plea of no contest on three charges: possession of heroin in an amount greater than ten grams but less than fifty grams, a felony of the second degree under R.C. 2925.11; having a weapon under a disability, a felony of the fifth degree under R.C. 2923.13; and possession of criminal tools, a felony of the fifth degree under R.C. 2923.24. Gales argues that the court erred when it quashed various defense subpoenas, denied his motion to suppress evidence, and refused to order the state to divulge the identity of the confidential informant who allegedly provided the factual basis for the search warrant. Because probable cause did not exist to issue the search warrant, and the good-faith exception to the Fourth Amendment exclusionary rule in the execution of the warrant does not apply to the facts of this case, we sustain Gales's second assignment of error challenging the denial of his motion to suppress the evidence, vacate the judgment of conviction, and remand for further proceedings.

The disposition of this appeal centers upon the July 30, 1998 affidavit supporting the search warrant of Gales's address, 15801 Invermere, Cleveland, Ohio, which was based upon a confidential reliable informant's two controlled buys of heroin, a Schedule I drug. The first controlled buy allegedly occurred "several months" before the date of the affidavit at East 147th and Harvard Avenue:

"Several months ago, CRI confidential reliable informant informed affiant that he had a conversation with a suspect, who was Maurice Gales and that Gales stated to the CRI that he had some heroin. Gales is described as a black male, in his twenties, 5'10" in height, weighing 200 pounds. CRI contacted Affiant and stated that he would contact Gales. CRI and Affiant met at a predetermined location at East 147th and Harvard Avenue. CRI contacted Gales via cellular telephone and was told by Gales that he had some heroin at the above described residence and he would drive over to the CRI's location with some heroin.

"* * *

"Surveillance was set up at the above described premises and Gales exited the above described premises and drove off in a Pontiac Bonneville, maroon in color. Gales appeared a short time later at the CRI's location. CRI was met by the suspect and the CRI entered the suspect's vehicle. A brief conversation ensued and an exchange of purported heroin for a sum of money occurred. Affiant states that the CRI returned to the undercover vehicle. CRI handed the affiant packets of purported heroin. CRI was again searched and found to be free of any other drugs for money. Affiant observed Gales return back to the above described premises."

The second controlled buy allegedly occurred within three days of the date of the affidavit. Gales allegedly initiated the transaction with a call to the informant. The informant completed the transaction at, again, a location other than 15801 Invermere with an unidentified black male whose car was later found at Gales's address:

"Within the past seventy-two (72) hours, affiant has conducted surveillance of the above described premises at which time he has observed Gales going in and out of the above described premises.

"Affiant states that within the past seventy-two (72) hours he met with the CRI. CRI informed Affiant that Gales contacted him and stated that the CRI should go to an area near Superior and Euclid Avenue to make a drug transaction. * * * Affiant states that the CRI has provided information leading to narcotic related arrests, confiscation of drugs, money and other contraband and other information involving premises used to sell narcotics.

"CRI was issued an amount of United States currency, the serial numbers of which were recorded. CRI was driven to the vicinity of Superior and Euclid Avenue and was observed by affiant to approach and enter a vehicle described as a black, four door Chevy Celebrity, with a temporary tag.

"CRI was met at the vehicle by a black male. CRI informed affiant that CRI and the black male engaged in an exchange in the vehicle where CRI handed the black male a sum of "buy money" and was given packets of purported heroin. Shortly thereafter, affiant observed this vehicle in the driveway of the above described premises."

A Cuyahoga County Common Pleas Court judge authorized the requested search warrant, and, around 8:00 a.m. on July 31, 1998, Cleveland police officers, in conjunction with members of the Drug Enforcement Administration, executed the warrant, confiscating currency, a pager, various guns, heroin, and other miscellaneous items. Gales was later charged with possession of heroin in an amount greater than ten grams but less than fifty grams, having a weapon under a disability, and possession of criminal tools.

Gales's attorney eventually filed separately a motion for the production of the alleged informant, challenging the existence and credibility of the alleged informant, and a motion to suppress, requesting both the suppression of the items seized in the alleged unlawful search and the return of these same items. After a Franks hearing,¹ the court denied Gales's motion to reveal the identity of the informant, concluding that Gales had failed to show that the identity of the informant was necessary to his defense, since the informant was neither a participant in the crime nor a witness to an element of the crime. At the hearing on the motion to suppress evidence, the state asked the court to deny discovery of the documents requested in various subpoenas issued to three Cleveland police officers associated with the search. Gales's attorney had requested various documents and records, including, for example, those setting forth the procedure used in conducting forcible entries of private homes, the number of homes entered forcibly in the previous 18 months, contacts with the informant, and dates of surveillance of the transactions at issue. After hearing, the judge denied the motion to suppress evidence and granted the state's request to quash the subpoenas.

On October 8, 1999, Gales withdrew his plea of not guilty and entered his plea of no contest. The court accepted the plea and found him guilty as charged in the indictment. In an order journalized November 3, 1999, the court imposed a prison term of two years on the possession offense and six months on the weapons and criminal tools offenses. From this order, Gales filed a timely appeal.

Gales presents three assignments of error for our review:

"I. The court erred when on the state's motion it in effect quashed various defense subpoenas and when the court failed to enforce the subpoenas when specifically requested to do so.

"II. The court erred when it denied the appellant's motion to suppress.

"III. The court erred when, for reasons that cannot be defined, he sic refused to require the state to divulge the identity of the alleged informant who was said to have been the purchaser (and thus a participant) in the alleged drug sales centralized in the case against the appellant."

His second assignment of error is dispositive of this appeal.

Gales argues that the affidavit lacked sufficient factual support to issue the warrant to search the premises. When "determining the sufficiency of probable cause in an affidavit submitted in support of a search warrant, `the 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 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, 2332-2333, 76 L.Ed.2d 527, 548-549. 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." George, supra, at paragraph two of the syllabus. Instead, "the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed," and it "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.

In addition, an affidavit for a search warrant must contain timely information. State v. Jones (1991), 72 Ohio App.3d 522, 526, 595 N.E.2d 485, 487-488. "`Proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time. Whether the proof meets this test must be determined by the circumstances of each case.'" Id., quoting Sgro v. United States (1932), 287 U.S. 206, 210, 53 S.Ct. 138, 140, 77 L.Ed. 260, 263.

"`Because probable cause to search "is concerned with facts relating to a presently existing condition," * * * there arises the "unique problem of whether the probable cause which once existed has grown `stale.'"` United States v. Spikes (C.A.6, 1998), ...