State v. Smedley

• Decision Date: 16 November 2018
• Docket Number: Appellate Case No. 27889
• Citation: 2018 Ohio 4629
• Parties: STATE OF OHIO Plaintiff-Appellee v. MIKEIAL SMEDLEY Defendant-Appellant
• Court: Ohio Court of Appeals

2018 Ohio 4629

STATE OF OHIO Plaintiff-Appellee v. MIKEIAL SMEDLEY Defendant-Appellant

Appellate Case No. 27889

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

November 16, 2018

Trial Court Case No. 2017-CR-4069

(Criminal Appeal from Common Pleas Court)

OPINION

MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

ADAM J. ARNOLD, Atty. Reg. No. 0088791, 120 W. Second Street, Suite 1717, Dayton, Ohio 45402 Attorney for Defendant-Appellant

HALL, J.

{¶ 1} Mikeial Smedley appeals from his convictions for trafficking and possessing cocaine and heroin and other related offenses. He contends that the search warrant that led to these charges was not supported by probable cause. He also contends that his trial counsel was ineffective for not challenging the search warrant under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), based on false and misleading information in the supporting affidavit. We conclude that the search warrant demonstrates probable cause and that the record reveals no basis for a Franks hearing. We affirm the judgment of the trial court.

I. Facts and Procedural History

{¶ 2} On June 2, 2017, Smedley was indicted on two counts of trafficking in cocaine (less than five grams), in violation of R.C. 2925.03(A)(1) and (C)(4)(a); three counts of aggravated trafficking in drugs (Schedule I or II), in violation of R.C. 2925.03(A)(1) and (C)(1)(a); one count of trafficking in heroin, in violation of R.C. 2925.03(A)(1) and (C)(6)(a); one count of possession of heroin (100 unit doses but less than 500 unit doses), in violation of R.C. 2925.11(A) and (C)(6)(d); one count of aggravated possession of drugs (Schedule I or II), in violation of R.C. 2925.11(A) and (C)(1)(a); one count of possession of cocaine (less than five grams), in violation of R.C. 2925.11(A) and (C)(4)(a); one count of tampering with evidence (alter/destroy), in violation of R.C. 2921.12(A)(1); and one count of possession of criminal tools, in violation of R.C. 2923.24(A) and (C).

{¶ 3} Smedley filed a motion to suppress the contraband found in his apartment, which police searched under a warrant. At a suppression hearing, the only evidence presented was the search warrant and the supporting affidavit. The parties agreed that a "four-corners" analysis of the warrant by the trial court would be sufficient to decide the motion to suppress. The affidavit was prepared and submitted by Detective Brad Campbell of the Clayton Police Department. Det. Campbell recounted the following facts that led to Smedley's indictment.

{¶ 4} On March 25, 2017, the Clayton Police Department received a complaint about drug activity occurring at an apartment building in the City of Clayton. The complainant said that a black male was selling drugs out of a particular apartment, and that a large amount of traffic would come and go from the apartment throughout the day. Det. Campbell, who was assigned to the Regional Agencies Narcotics and Gun Enforcement (RANGE) Task Force and had extensive experience with drug investigations, called the complainant for more information. The complainant told him that the black male resident of the apartment would regularly walk down from his apartment to the parking lot of the building and engage in hand-to-hand drug transactions at all hours of the day and night.

{¶ 5} Det. Campbell checked dispatch records and talked to the apartment manager and discovered that Smedley was the current lessee of the apartment. Campbell ran Smedley's name through the Ohio Bureau of Motor Vehicles database and confirmed that the apartment address was listed as his home address on his driver's license.

{¶ 6} On March 28, Det. Campbell conducted surveillance on the apartment for several hours. Multiple times, he saw a vehicle drive into the parking lot and park in a spot that Campbell could not see. A young black male would soon exit the apartment and walk to the vehicle's location. A short time later, the man would walk back to the apartment, and the vehicle would drive away. Det. Campbell knew, based on his training and experience, that this behavior was consistent with drug trafficking.

{¶ 7} On May 11, Det. Campbell, along with Det. McCoy, also on the RANGE Task Force, met with a confidential informant, or CI, who agreed to provide information in exchange for case consideration. The CI told the detectives that he regularly purchased cocaine and heroin at the apartment. The CI said that he bought the drugs from a black male whom he knew only as "Ox," and he positively identified "Ox" as Smedley, based on a photograph of Smedley. Det. Campbell had never before used the informant as a source, but he "was able to corroborate information that the CI provided utilizing independent investigative techniques." (Affidavit, ¶ G).

{¶ 8} Detectives from the RANGE Task Force organized a series of three controlled buys from the apartment using the confidential informant. The first occurred on May 16:

I. * * * Detective A.D. McCoy met with the CI M in regards to conducting a controlled purchase of cocaine and heroin from Mikeial Smedley at 7837 North Main Street Apartment #11 in the City of Clayton. The CI was searched for contraband and none was found. The CI was then outfitted with a wireless transmitter for security purposes and provided with serialized RANGE buy funds to conduct the controlled purchase. While Detective McCoy was meeting with the CI, RANGE Task Force Detective Josh Samples established surveillance of 7837 North Main Street, Apartment #11.

J. At the direction of Detective McCoy, the CI placed a controlled phone call to phone number * * * to order the narcotics. Detective McCoy monitored this phone call. The CI spoke to a male subject on the phone and the male subject agreed to the sale. At the same time that the CI was speaking to the male subject on the phone, Detective Samples observed a black male wearing a red Ohio State jersey standing at the front screen door of 7837 North Main Street, Apartment #11. Detective Samples was able to positively identify this subject as Mikeial Smedley. When the CI placed the controlled phone call to [the phone number], Detective Samples observed Smedley appear to answer his phone and begin speaking to someone. When the CI ended the controlled phone call, Detective Samples observed Smedley appear to hang up his phone.

K. Detective McCoy then transported the CI to the area of 7837 North Main Street and dropped him/her off. The CI was kept under constant surveillance by Detective Samples. As the CI was walking towards the door of apartment #11, Smedley exited the front door of the apartment and met with the CI on the outdoor walkway. Smedley and the CI then exchanged something hand-to-hand and the CI walked away from the apartment, while Smedley re-entered the apartment through the front door. The CI returned to Detective McCoy's vehicle and immediately turned over four (4) gel capsules of suspected narcotics; two (2) capsules of suspected cocaine and two (2) capsules of suspected fentanyl. Detective McCoy and the CI then departed the area.

L. Once at a secure location, Detective McCoy searched the CI again and no contraband was found on his/her person. Detective McCoy later conducted a field test of the suspected cocaine that the CI had purchased from Smedley and the substance tested positive for the presence of cocaine. The suspected fentanyl that the CI had purchased was not field tested. The gel capsules were photographed, packaged, and submitted to the MVRCL for analysis. The results from the MVRCL are pending.

{¶ 9} The second controlled buy occurred two days later, on May 16. The affidavit describes the buy as occurring almost exactly like the first controlled buy. The confidential informant was searched, outfitted with a wireless transmitter, and given money. While one detective got the informant ready, another detective watched the apartment. Det. McCoy dropped off the CI, and then he and another detective watched the buy unfold. The CI entered the apartment and exited a short time later, returning directly to McCoy. This time, the CI turned over four gel capsules of suspected narcotics—two capsules of suspected cocaine, one capsule of suspected fentanyl, and one capsule of suspected heroin. The CI told McCoy that Smedley let him into the apartment and sold him the drugs. McCoy field tested the suspected heroin, and it tested positive. The suspected cocaine and fentanyl were sent to the lab for analysis.

{¶ 10} The third controlled buy occurred a week later, on May 23. Det. Campbell participated in this one. The affidavit describes the buy as occurring almost exactly like the two earlier controlled buys. The CI was searched, outfitted with a wireless transmitter, and given money. While one detective got the informant ready, another detective watched the apartment. Det. McCoy dropped off the CI, and then he, the other detective, and Det. Campbell watched. The CI walked up to the front door of the apartment, and a short time later, Smedley came up the stairs from the parking lot and met the CI on the front walkway. Smedley opened the door to the apartment, and he and the CI went inside. The CI exited a short time later and returned directly to McCoy. Again, the confidential informant turned over four gel capsules of suspected narcotics—this time, two capsules of suspected cocaine and two capsules of suspected heroin. The CI said that it was Smedley who let him into the apartment and sold him the drugs. Det. Campbell field tested the suspected heroin, and it tested positive. The suspected cocaine and fentanyl were sent to the lab for analysis.

{¶ 11} The day after the third controlled buy, on May 24, Det. Campbell presented a request for a search warrant and a supporting affidavit...