State v. Hobbs, Case No. 17CA1054

CourtUnited States Court of Appeals (Ohio)
Citation2018 Ohio 4059
Docket NumberCase No. 17CA1054
PartiesSTATE OF OHIO, Plaintiff-Appellee, v. LEE HOBBS, Defendant-Appellant.
Decision Date26 September 2018

2018 Ohio 4059

STATE OF OHIO, Plaintiff-Appellee,
v.
LEE HOBBS, Defendant-Appellant.

Case No. 17CA1054

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY

September 26, 2018


DECISION AND JUDGMENT ENTRY

APPEARANCES:

Tyler E. Cantrell, West Union, Ohio, for Appellant.

David Kelley, Adams County Prosecuting Attorney, and Kris D. Blanton, Adams County Assistant Prosecuting Attorney, West Union, Ohio, for Appellee.

CRIMINAL CASE FROM COMMON PLEAS COURT
ABELE, J.

{¶ 1} This is an appeal from an Adams County Common Pleas Court judgment of conviction and sentence. Lee Hobbs, defendant below and appellant herein, assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE."

SECOND ASSIGNMENT OF ERROR:

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"THE TRIAL COURT ERRED IN DENYING THE DEFENDANT THE ABILITY TO CALL ROBERT CHAMBERS AS A WITNESS."

{¶ 2} After law enforcement officers executed two separate search warrants against appellant's property, an Adams County Grand Jury returned an indictment that charged appellant with one count of fifth-degree felony aggravated possession of drugs and one count of second-degree felony aggravated possession of drugs, both in violation of R.C. 2925.11(A). Appellant entered not guilty pleas.

{¶ 3} Appellant later filed a motion to suppress the evidence gathered during the searches of his house. Appellant asserted that neither search warrant established probable cause to believe that his property contained evidence of a crime. At a hearing to consider appellant's motion, neither party presented any testimonial evidence. Instead, the parties agreed that the court was limited to the four corners of the search warrants and accompanying affidavits. The search warrants and affidavits reveal the following information.

{¶ 4} Adams County Sheriff's Deputy Brandon Asbury obtained the first search warrant, dated August 1, 2016. In his affidavit, Deputy Asbury averred that on July 31, 2016, he visited appellant's residence after an anonymous informant reported that appellant had been using methamphetamine and possibly was involved in manufacturing methamphetamine. When Deputy Asbury arrived at appellant's residence, he observed appellant in the backyard. Deputy Asbury proceeded to the backyard and noticed a marijuana plant growing on the roof of the

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awning attached to the main house. The deputy asked to speak with appellant, but appellant fled into the house. As appellant fled, he dropped a glass tube that displayed burn marks and residue.

{¶ 5} While Deputy Asbury attempted to detain appellant, the deputy also observed inside the residence several pills, scales and a marijuana pipe. The deputy's affidavit does not, however, indicate whether he observed these items while remaining outside appellant's home, or if he had followed appellant into the home and then observed the items. Deputy Asbury further alleged that two individuals with drug convictions and/or drug-related arrests were present at appellant's home and that both of these individuals had purchased Sudafed in the previous week. The deputy stated that, based upon the foregoing facts, he believed appellant's residence contained methamphetamine, marijuana, other drugs of abuse and drug paraphernalia.

{¶ 6} A judge determined that the search warrant affidavit established probable cause to search appellant's property and to seize:

Items of Evidence, including but not limited to: Unknown quantities of methamphetamine, marijuana, and any and all other drugs of abuse, and drug paraphernalia, including scales, packaging materials, and paraphernalia used for the sale and administration of said drugs, materials used in the cultivation of marijuana, money obtained from the sale of illegal drugs as well as weapons used for the protection of the above; which are: being concealed in violation of law, ORC 2925.11, Possession of Drugs and 2925.04; Cultivation of Marijuana, at the premises[.]

{¶ 7} After Deputy Asbury executed the search warrant, he found in appellant's bedroom four glass pipes that displayed white residue and burn marks. He discovered a fifth pipe in the kitchen. Subsequent testing revealed that one glass pipe contained trace amounts of methamphetamine.

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{¶ 8} On November 23, 2016, Adams County Sheriff's Detective Sam Purdin requested a second warrant to search appellant's residence. Detective Purdin stated that he believed appellant's residence contained heroin, drugs of abuse and drug paraphernalia based upon the following facts and circumstances. Detective Purdin received a complaint that Robert Chambers had been selling drugs at Wal-Mart in West Union. Detective Purdin subsequently encountered Chambers at an unspecified location and discovered on Chambers' person a "shaver" and a hypodermic needle. The detective explained that a "shaver" is known to be used for cutting heroin. Chambers also admitted that he had used the needle for heroin. Chambers additionally indicated that he had been staying at appellant's residence.

{¶ 9} Approximately one week later, Detective Purdin visited appellant's residence, but no one answered. Detective Purdin, noted, however, Chambers' vehicle parked outside the residence. A judge determined that the search warrant affidavit established probable cause to search appellant's residence and to seize:

Items of Evidence, including but not limited to: Unknown quantities of heroin and any and all other drugs of abuse, and drug paraphernalia, including scales, packaging materials, and paraphernalia used for the sale and administration of said drugs, money obtained from the sale of illegal drugs as well as weapons used for the protection of the above; which are: being concealed in violation of law, ORC 2925.11, Possession of Drugs at the premises[.]

{¶ 10} The detective later searched appellant's residence, including appellant's bedroom. While searching the bedroom, Detective Purdin found multiple baggies of methamphetamine under the mattress and another baggie in appellant's closet. Later testing revealed that the methamphetamine weighed approximately 19 grams.

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{¶ 11} At the motion to suppress hearing, appellant argued that neither affidavit set forth adequate facts to establish probable cause to search his residence. With respect to the first warrant, appellant contended that the affidavit did not contain any information to illustrate the reliability of the informant's tip. Appellant thus alleged that the tip could not be used to establish probable cause.

{¶ 12} Appellant further alleged that the issuing judge's probable-cause determination rested upon evidence that Deputy Asbury discovered after he unlawfully entered appellant's residence. Appellant argued that, although the deputy claimed to have seen drug paraphernalia in open view, the deputy did not view the paraphernalia from a lawful vantage point. Appellant thus asserted that the drug paraphernalia is tainted evidence that may not form part of the probable-cause analysis.

{¶ 13} With respect to the second search warrant, appellant contended that the affidavit failed to set forth probable cause to believe that evidence of Chambers' criminal activity would be found at appellant's house. Appellant argued that the search warrant was inadequately particularized and should have been limited to Chambers' bedroom, or to those areas under Chambers' control. Appellant argued that the search warrant should not have authorized a search of his bedroom or person.

{¶ 14} After the court heard the parties' arguments, the court overruled appellant's motion. With respect to the first search warrant, the trial court found that the issuing judge had a substantial basis to conclude that probable cause existed to search appellant's property. The court noted that the anonymous informant initially led Deputy Asbury to appellant's residence and, given the nature of the tip about possible methamphetamine production, the deputy had

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adequate grounds to conduct at least "a safety check" of appellant's residence. The court observed that during this "safety check," Deputy Asbury saw a marijuana plant growing on the roof of the awning attached to the main house. Deputy Asbury then asked to speak with appellant, but appellant fled inside the house. As appellant fled, he dropped a glass tube that displayed burn marks and residue. Deputy Asbury attempted to detain appellant and he observed pills, scales and a marijuana pipe. The court indicated that when the deputy attempted to detain appellant, the deputy "somehow ended up on the uh, in an area either outside of a screen door that uh, the glass was there, as suggests that he was in plain view. Or that uh, actually [appellant] may have gotten to the initial uh, part of the residence, but regardless uh, the uh, plain view doctrine which allows that to be a basis for uh, sometimes arrest, sometimes searches."

{¶ 15} The court noted that before that point, however, Deputy Asbury was aware of the following facts: (1) an anonymous source stated that appellant might be manufacturing methamphetamine on his property; (2) a marijuana plant was growing on appellant's property; (3) appellant fled when the deputy asked to speak with him; and (4) appellant dropped a glass tube that had burn marks and residue. The court determined that these facts gave the deputy reason to attempt to ensure the safety of the premises and persons on the premises. The court further found that as the deputy attempted to detain appellant, the deputy saw, in "plain view," pills, scales, and a marijuana pipe. The court observed that the deputy also noted the presence of two individuals who had recent drug-related convictions or arrests and who had purchased Sudafed within the previous week. The court also noted that Sudafed is used to manufacture

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methamphetamine. The court determined that all of the foregoing circumstances set forth in the affidavit supported the issuing judge's...

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