State v. Johnson

• Decision Date: 21 August 2020
• Docket Number: Appellate Case No. 2019-CA-64
• Citation: 2020 Ohio 4159
• Parties: STATE OF OHIO Plaintiff-Appellee v. NATHANIEL JOHNSON Defendant-Appellant
• Court: Ohio Court of Appeals

2020 Ohio 4159

STATE OF OHIO Plaintiff-Appellee v. NATHANIEL JOHNSON Defendant-Appellant

Appellate Case No. 2019-CA-64

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

August 21, 2020

Trial Court Case No. 2018-CR-251

(Criminal Appeal from Common Pleas Court)

OPINION

MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney, Greene County Prosecutor's Office, Appellate Division, 61 Greene Street, Suite 200, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee

CHRISTOPHER J. PAGAN, Atty. Reg. No. 0062751, 1501 First Avenue, Middletown, Ohio 45044 Attorney for Defendant-Appellant

HALL, J.

{¶ 1} Nathaniel Johnson appeals from his conviction following a no-contest plea to one count of attempted manufacturing of fireworks in violation of R.C. 3743.60(A), a fourth-degree felony.

{¶ 2} Johnson advances two assignments of error in which he challenges the trial court's overruling of motions to suppress search warrants for two residential properties.

{¶ 3} The record reflects that Johnson was indicted in April 2018 on four counts of first-degree misdemeanor possession of fireworks and one count of third-degree felony manufacture of fireworks. The indictment included a forfeiture specification pertaining to fireworks and related materials seized pursuant to a search warrant.

{¶ 4} In May 2018, Johnson moved to suppress the evidence underlying the charges against him. That evidence had been obtained during separate searches of Johnson's home and his parents' home. Both searches were performed pursuant to warrants supported by an affidavit from an investigator with the Ohio Fire Marshal's office. At the outset of a December 6, 2019 hearing on the motions, Johnson agreed that an evidentiary hearing was not required. He agreed that the motions could be resolved based solely on a "four corners" review of the investigator's affidavit and the warrants, all of which were made part of the record. Johnson and the State then briefed their positions. In his August 13, 2018 memorandum, Johnson argued that the affidavit for a warrant to search his parents' property failed to establish probable cause. He made no other argument with regard to that search warrant. With regard to the search of his own property, Johnson argued that it was defective because he was not given a copy of the warrant at the time of the search. Rather, he inadvertently received a copy of the supporting affidavit at the time of the search and received the actual warrant the following day. In his memorandum, he conceded that the contents of the investigator's affidavit "would be enough to obtain a search warrant for the Shawnee Trail address." (August 13, 2018 Memorandum at p. 5.)

{¶ 5} After reviewing the investigator's affidavits and the two search warrants, the trial court overruled Johnson's suppression motion. The trial court held that the search-warrant affidavit for Johnson's parents' property established probable cause to believe "evidence of unlawful possession, sale and/or use of fireworks" would be found there. (February 14, 2019 Judgment Entry at 2-4.) With regard to Johnson's own property, the trial court noted that he did "not challenge the existence of probable cause for the issuance of the search warrant[.]" (Id. at 5.) In any event, the trial court held that probable cause existed. (Id.) The trial court then found no Fourth Amendment violation arising from the fact that Johnson received a copy of the search-warrant affidavit at the time of the search and the actual warrant the following day. (Id. at 5-7.) The trial court also found no basis for suppression due to the fact that the investigator's affidavits referred to and incorporated by reference portions of the requested warrants that set forth "the specific details of the alleged criminal offenses, the property to be seized, and the locations of the searches." (Id. at 7-8.) Finally, the trial court held that the issued search warrants identified with particularity the items to be searched for and seized. (Id. at 8-10.)

{¶ 6} Following the trial court's ruling, Johnson pled no contest to an amended charge of attempted manufacturing of fireworks with a forfeiture specification in exchange for the dismissal of all other charges and the State's recommendation of community control sanctions. The trial court accepted the plea and made a finding of guilt. The trial court subsequently sentenced Johnson to five years of community control. (October 2, 2019 Judgment Entry.) This appeal followed.

{¶ 7} In his first assignment of error, Johnson contends the trial court erred in overruling his motion to suppress evidence found at his parents' residence. He raises four issues in support.

{¶ 8} In his opening brief, Johnson first argues that a search warrant improperly was issued based on a finding of probable cause that a criminal violation of R.C. 3743.63 had occurred and that evidence of the offense likely would be found inside his parents' house, the garage, and the outbuildings. Johnson's opening brief asserts that a violation of R.C. 3743.63 is not a criminal offense and, therefore, that no basis existed for issuing a search warrant. In his reply brief, however, Johnson concedes that a violation of R.C. 3743.63 in fact is a criminal offense, and he withdraws his argument. Given that Johnson has withdrawn his first argument, we need not address the issue.

{¶ 9} The second issue Johnson raises is whether the investigator's affidavit provided a substantial basis for the issuing magistrate to conclude that evidence of a crime would be found inside his parents' house, the garage, and the outbuildings. Johnson argues that the affidavit failed to establish probable cause and, therefore, that the subsequently issued warrant was invalid.

{¶ 10} After setting forth her relevant experience, investigator Karen Corwin averred as follows in her search-warrant affidavit:

1. On June 27, 2016 [sic] the State Fire Marshal's Office received a referral regarding the illegal use and/or possession of fireworks from the Greene County Sheriff's Office. The complaint advised that an individual by the name of Nate Johnson was in possession of fireworks and planning to set them off on Friday, June 30, 2017. Copies of Facebook posts from June 15, 2017, which described what Nate purchased, including photographs of receipts, Nate and unknown associates posing outside a business called Phantom Fireworks and several comments regarding the number of fireworks purchased were forwarded to the State Fire Marshal's Office.

2. Investigators with the State Fire Marshal's Office went on the Facebook page and identified what the Sheriff's Office had sent. The individual was identified as Nate Johnson, DOB 3/19/1977, with a residential address of 3937 Shawnee Trail, Jamestown, Ohio 45335.

3. Affiant further learned that Mr. Johnson was planning a fireworks show through reading his Facebook pages on June 30, 2017. Further review of his Facebook page reveals that Mr. Johnson has built racks out of what appears to be white PVC and placed in a plastic container for use in his fireworks show.

4. On June 27, 2017, a deputy with the Greene County Sheriff's Office was in the area of 4703 Waynesville Jamestown Road, when a large firework was shot off and went over the cruiser. The deputy pulled into the driveway and issued Mr. Johnson a citation for illegal use and/or possession of fireworks. Johnson admitted to setting off the firework, but claimed he was not shooting at the deputy's car. Affiant has learned that 4703 Waynesville Jamestown Road is the home of Mr. Johnson's parents.

5. On June 28, 2017, Silvercreek Township Fire Chief was contacted by Nate Johnson, asking the Chief to grant him a permit to shoot fireworks and to inspect the location where he wanted to set them off. Johnson advised he would be set up to shoot fireworks over "the creek" and that the fireworks would be set up in such a way that once one fuse was lit, the entire inventory of fireworks would "go." The Silvercreek Township Fire Chief referred him to the State Fire Marshal's Office to get the appropriate permit or license. The Silvercreek Township Fire Chief further advised that there was a hay cart with items on it covered by a tarp down by the creek on 4703 Waynesville Jamestown Road.

6. Affiant was further advised by the Greene County Sheriff's Office of a video posted on Facebook by Mr. Johnson which depicted fireworks being shot in all directions at his home on Shawnee Trail in New Jasper Township. There have been numerous complaints made to the Greene County Sheriff's Office by neighbors of the Shawnee Trail address of fireworks being shot off.

7. Affiant is aware, in her training and experience that PVC pipe is a rigid plastic that causes shrapnel to fly when shattered, potentially causing significant injury to anyone in the area of the fireworks show. Further plastic containers nor PVC pipe are approved containers to build mortars and racks to shoot fireworks from.

8. Based on the above facts and beliefs, and in my experience and in the experience of other members of the State Fire Marshal's Office, Affiant has a good and probable cause to believe that unlawfully possessed fireworks will be found on the premises described above. * * *

(July 5, 2018 Suppression Tr. at Joint Exh. 1.)

{¶ 11} "In 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 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, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph one of the syllabus, quoting Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

{¶ 12} "[T]he duty of...