State v. Reece , 2017 Ohio 8789 ( 2017 )

[Cite as State v. Reece, 2017-Ohio-8789.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-17-27
v.
SHADA L. REECE, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 2016 CR 0428
Judgment Affirmed
Date of Decision: December 4, 2017
APPEARANCES:
Caleb Carson, III for Appellant
Kevin P. Collins for Appellee
Case No. 9-17-27
PRESTON, P.J.
{¶1} Defendant-appellant, Shada L. Reece (“Reece”), appeals the June 7,
2017 judgment entry of sentence of the Marion County Court of Common Pleas.
For the reasons that follow, we affirm.
{¶2} This case stems from an investigation that took place in Marion, Ohio.
In June of 2016, law enforcement officers in Marion conducted a controlled drug
buy from William Maniaci (“Maniaci”). As part of that operation, a confidential
informant (“CI”) picked up Maniaci at the Avalon Lakes apartment complex and
drove Maniaci to several locations before dropping him off near Chestnut Street,
where the CI purchased cocaine from Maniaci. On August 11, 2016, law
enforcement observed Maniaci depart from an address on Kibbey Drive at which
Maniaci was known to reside with Reece. That same day, law enforcement
requested and obtained an anticipatory search warrant for Maniaci’s residence. The
execution of that search warrant produced items indicative of drug activity.
{¶3} On August 25, 2016, the Marion County Grand Jury returned a joint
indictment in which it indicted Reece on Count One of possession of cocaine in
violation of R.C. 2925.11(A),(C)(4), a felony of the first degree; Count Two of
possession of heroin in violation of R.C. 2925.11(A),(C)(6), a felony of the first
degree; and Count Three of tampering with evidence in violation of R.C.
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2921.12(A), a felony of the third degree.1 (Doc. No. 2). Counts One and Two
included major drug offender (MDO) specifications under R.C. 2941.1410 alleging
that Reece is a major drug offender as defined in R.C. 2929.01(w). (Id.). Counts
One and Two also included forfeiture specifications under R.C. 2941.1417 seeking
the forfeiture of a gun safe and certain firearms allegedly used in the commission of
Counts One and Two, as well as the forfeiture of $15,673.00 in currency related to
those counts. (Id.). On August 29, 2016, Reece appeared for arraignment and pled
not guilty to the counts and specifications in the joint indictment. (Doc. No. 7).
{¶4} On October 21, 2016, Reece filed a motion to suppress evidence. (Doc.
No. 21). In that motion, Reece sought the suppression of evidence obtained during
the search of the residence on Kibbey Drive, arguing that the search warrant was
not supported by probable cause because the affidavit in support of it contained stale
information, because the affidavit contained only conclusory assertions with no
specific mention of the residence in question and no observations of criminal
activity at that location, and because the affidavit did not contain indications that
the CI was reliable. The trial court held a suppression hearing on December 22,
2016 and, on December 28, 2016, the trial court denied Reece’s motion to suppress
evidence. (Doc. No. 29).
1
The joint indictment also included charges against Maniaci. (Doc. No. 2). Because Reece brings this
appeal, we will discuss only charges relevant to Reece.
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{¶5} On March 23, 2017, the State filed a joint superseding indictment
indicting Reece and co-defendant Maniaci with a total of five counts, as well as
various specifications. (Doc. No. 63). The joint superseding indictment charged
Reece with the same counts and specifications included in the joint indictment, as
well as a firearm specification under R.C. 2941.141 as to Counts One and Two.
(Id.).2
{¶6} Reece appeared for arraignment on March 28, 2017 and pled not guilty
to the relevant counts and specifications in the joint superseding indictment. (Doc.
No. 72).
{¶7} On April 6, 2017, pursuant to a negotiated plea agreement, Reece
appeared and pled no contest to Count Three and to an amended Count One.3 (Doc.
No. 118). Count Two, as well as the MDO and forfeiture specifications as to Counts
One and Two, were dismissed. (Id.). The trial court accepted the plea of no contest
and found Reece guilty. (Id.). The trial court sentenced Reece to two years in prison
as to Count One and two years of community control as to Count Three. (Id.). The
trial court filed its judgment entry of sentence on June 7, 2017. (Id.).
2
The joint superseding indictment charged Maniaci with several counts and specifications, including some
relevant to Maniaci but not to Reece. (Doc. No. 63). Again, we will discuss only counts and specifications
relevant to Reece’s appeal.
3
Count One was amended so as to make the offense a felony of the second degree rather than a felony of the
first degree. (Doc. No. 118).
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{¶8} Reece filed her notice of appeal on June 23, 2017. (Doc. No. 121). She
brings three assignments of error for our review, which we address together.
Assignment of Error No. I
The Trial Court Erred When It Determined That The
Anticipatory Warrant To Search The Residence In Question Was
Supported By Sufficient Probable Cause.
Assignment of Error No. II
The Trial Court Erred When It Determined That The Triggering
Conditions In The Affidavit Of The Anticipatory Warrant To
Search Supported Probable Cause that Drugs Would Be Found
At The Residence In Question.
Assignment Of Error No. III
The Good[-]Faith Exception To The Exclusionary Rule Does Not
Apply To Validate The Anticipatory Search Warrant.
{¶9} In her first assignment of error, Reece argues that the trial court erred
when it determined that the anticipatory warrant to search the residence in question
is supported by probable cause. Specifically, Reece argues that the warrant is not
supported by probable cause because the affidavit alludes to a controlled drug buy
that took place two months prior at a location other than the residence that was
ultimately searched. Reece further argues that the warrant was not supported by
probable cause because it indicates that Maniaci was driven to many locations
before he was dropped off at an address near Chestnut Street, and the CI did not
observe Maniaci in possession of drugs at the residence searched. Reece also argues
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that the warrant is not supported by probable cause because the affidavit in support
of the warrant does not indicate that Maniaci lived at the residence searched or that
he frequented that location.
{¶10} In her second assignment of error, Reece argues that the trial court
erred when it found that the triggering conditions identified in the warrant provided
probable cause to believe drugs would be found at the residence in question.
Specifically, Reece argues that the conditions in question did not give rise to
probable cause to believe that there were drugs in the home because Maniaci was
not arrested immediately after leaving the residence, but rather was arrested after
entering and exiting two vehicles from which drugs may have been obtained. Reece
also argues that Maniaci’s departure from the residence in question after a phone
call was insufficient because there were no prior instances of such an event during
the investigation.
{¶11} In her third assignment of error, Reece argues that the good-faith
exception to the exclusionary rule does not validate the search conducted under the
anticipatory search warrant. Specifically, Reece argues that the good-faith
exception does not apply because the affidavit in support of the warrant was so
lacking in indicia of probable cause that belief in the existence of probable cause
was entirely unreasonable.
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{¶12} A review of the denial of a motion to suppress involves mixed
questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,
¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as
such, is in the best position to evaluate the evidence and the credibility of witnesses.
Id. See also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a
ruling on a motion to suppress, “an appellate court must accept the trial court’s
findings of fact if they are supported by competent, credible evidence.” Burnside at
¶ 8, citing State v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s
conclusions of law, however, our standard of review is de novo, and we must
independently determine whether the facts satisfy the applicable legal standard. Id.,citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).
{¶13} “Probable cause” means less evidence than would permit
condemnation such that only probability, and not a showing of criminal activity, is
the standard of probable cause. State v. George, 45 Ohio St.3d 325, 329 (1989),
paragraph two of the syllabus.
{¶14} When reviewing the sufficiency of probable cause in an affidavit
submitted in support of a search warrant, our duty is simply to “ensure that the
magistrate had a substantial basis for concluding that probable cause existed.”
George at 325 citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983). We
must not conduct “a de novo determination as to whether the affidavit contains
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sufficient probable cause upon which the court would issue the search warrant,” but
rather accord great deference to the trial court’s determination of probable cause and
resolve marginal cases in favor of upholding the warrant. George at paragraph two
of the syllabus. We recognize that the duty of the issuing official 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 the ‘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.” Id. at 329, citing Gates at
238-239. When reviewing the sufficiency of probable cause offered in support of a
warrant, a reviewing court is bound to consider only the information available to the
judge or magistrate at the time the warrant was issued. State v. Garza, 3d Dist.
Henry No. 7-13-04, 2013-Ohio-5492, ¶ 10, citing State v. Graddy, 55 Ohio St.2d
132, 134 (1978). This often means that a court is bound to consider only what is
within the four corners of the affidavit in support of the search warrant, as the
affidavit is often the only evidence before an issuing judge or magistrate. Id.{¶15} A valid affidavit in support of a search warrant must contain timely
information so as to justify a finding of probable cause at the time the warrant issues.
State v. Fayson, 3d Dist. Seneca No. 13-17-08, 2017-Ohio-7793, ¶ 16, citing State
v. Prater, 12th Dist. Warren No. CA 2001-12-114, 2002-Ohio-4487, ¶ 11. The issue
is whether the facts alleged in the warrant create a reasonable basis to conclude that
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evidence of criminal activity remains on the premises to be searched. Id. Whether
information is stale within the context of a particular case depends on a number of
factors, including the character of the crime, the character of the criminal, the nature
of the thing to be seized, and the nature of the place to be searched. State v. Cook,
5th Dist. Muskingum Nos. 2010-CA-40 and 2010-CA-41, 2011-Ohio-1776, ¶ 23.
Even if some information that forms the basis of a probable cause is stale, when
recent information corroborates otherwise stale information, probable cause may be
found. State v. Ingold, 10th Dist. Franklin No. 07AP-648, 2008-Ohio-2303, ¶ 35.
{¶16} The Fourth Amendment to the United States Constitution and Article
I, Section 14 of the Ohio Constitution protect individuals against unreasonable
searches and seizures by the government, and they protect privacy interests where
an individual has a reasonable expectation of privacy. State v. Fielding, 10th Dist.
Franklin Nos. 13AP-654 and 13AP-655, 2014-Ohio-3105, ¶ 15, quoting Smith v.
Maryland, 442 U.S. 735, 740, 99S.Ct. 2577 (1979). An expectation of privacy is
protected where an individual has manifested a subjective expectation of privacy
and that expectation is one that society recognizes as reasonable. Id., citing Smith
at 740, citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
concurring). While the Fourth Amendment does not specifically provide that
unlawful searches and seizures will result in the suppression of ill-gotten evidence,
the United States Supreme Court has held that the exclusion of evidence is an
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essential part of the Fourth Amendment. State v. Jenkins, 3d Dist. Union No. 14-
10-10, 2010-Ohio-5943, ¶ 9, citing Mapp v. Ohio, 367 U.S. 643, 649, 81 S.Ct. 1684(1961) and Weeks v. United States, 232 U.S. 383, 394, 34 S.Ct. 341 (1914).
{¶17} The exclusionary rule should not bar the use of evidence obtained by
officers acting in objectively reasonable reliance on a search warrant issued by a
detached and neutral magistrate even if that warrant is ultimately found to be
unsupported by probable cause. George at 325, citing U.S. v. Leon, 468 U.S. 897,
104 S.Ct. 3405 (1984). Exclusion remains proper, however, where the magistrate
or judge who issued the warrant was misled by information in the affidavit that the
affiant knew was false or would have known was false if not for reckless disregard
of the truth, where the magistrate wholly abandoned his judicial function in issuing
the warrant, where the affidavit is “so lacking in indicia of probable cause as to
render belief in its existence entirely unreasonable,” or where the warrant is so
facially deficient that officers cannot reasonably presume its validity. Id. at 331,
citing Leon at 923.
{¶18} An anticipatory search warrant is a search warrant based on an
affidavit that provides probable cause to believe that, at some future time rather than
presently, evidence of a crime will be located in a particular place. State v. Blevins,
3d Dist. Marion No. 9-06-40, 2007-Ohio-6972, ¶ 21, quoting US v. Grubbs, 547
U.S. 90, 93, 126 S.Ct. 1494 (2006). Anticipatory search warrants are no different
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from ordinary search warrants in that they require the issuing official to determine
(1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will
be on the identified premises (3) when the warrant is executed. Id., quoting id. Such
warrants are often subjected to some condition precedent other than the mere
passage of time—called a “triggering condition.” Id., quoting id. For such warrants
to comply with the constitutional requirement of probable cause, it must be shown,
not only that contraband will probably be at a location in the event a triggering
condition occurs, but also that the triggering condition is itself likely to occur. Id.,quoting id.{¶19} In the affidavit in support of the search warrant, the affiant provided
generally the following information: On June 16, 2016, a CI made a controlled
purchase of cocaine from Maniaci. The CI picked Maniaci up from the Avalon
Lakes apartment complex and drove him to several locations before purchasing
cocaine from Maniaci near Chestnut Street. After the controlled buy, Detective
Andrew Isom (“Detective Isom”) of the Marion Police Department viewed an
audio-visual recording of the CI’s interaction with Maniaci and found that recording
to be consistent with the events related by the CI. The recording included Maniaci’s
discussing the possession of narcotics. On August 11, 2016, law enforcement saw
Maniaci depart a known address on Kibbey Drive. Law enforcement planned to
search Maniaci’s residence if the CI placed a telephone call to Maniaci to arrange
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the purchase of cocaine, Maniaci left the residence on Kibbey Drive, and Maniaci
was found with cocaine on his person at the time of his arrest on an outstanding
arrest warrant. (Doc. No. 21).
{¶20} Where an affidavit in support of a search warrant indicates an ongoing
relationship spanning several weeks between a CI and the target of a drug
investigation, such information supports probable cause for a search. State v.
Maniaci, 3d Dist. Marion No. 9-17-14, 2017-Ohio-8270, ¶ 26. Such is all the more
the case when the target of the investigation involved the CI in drug-related activity
and boasted to the CI regarding the quantity of drugs he could sell. Id. Because
drug traffickers tend to keep evidence of their illicit activities in their residences,
evidence of an individual’s drug trafficking supports probable cause to search his
residence even where observed illegal activity is not at or near the residence to be
searched. State v. Myers, 9th Dist. Summit No. 27576, 2015-Ohio-2135, ¶ 13.
{¶21} In the present case, the evidence indicates an ongoing relationship
between the CI and Maniaci such that Maniaci both sold drugs to the CI and was
comfortable enough in the presence of the CI to have the CI accompany him to
various locations around Marion while Maniaci boasted about the quantity of drugs
he had for sale. Maniaci at ¶ 26. Even if we assume without holding that such
information is too stale to provide the basis for a search of Maniaci’s residence less
than two months later, such evidence at a minimum establishes his involvement in
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the drug trade. We further note that law enforcement observed Maniaci with drugs
on his person the very day the warrant was issued prior to the search of Maniaci’s
residence, and this cures any potential difficulty with staleness. State v. Taylor, 174
Ohio App.3d 477, 484, 2007-Ohio-7066, ¶ 19 (First Dist.). Evidence of drug
trafficking, without more, furnishes probable cause to search Maniaci’s residence
because drug traffickers often keep evidence of their illicit activities in their
residences. Myers at ¶ 13. Particularly in light of the fact that the law requires us
to accord broad deference to the determinations of probable cause by the issuing
judge, we conclude that the issuing judge had a substantial basis for concluding that
probable cause existed. Maniaci at ¶ 26; Taylor at ¶ 19; Myers at ¶ 13.
{¶22} For the reasons explained above, Reece’s first and second assignments
of error are overruled.
{¶23} Because we have found that probable cause supported the issuance of
the search warrant, Reece’s assertions pertaining to the good-faith exception to the
warrant requirement are rendered moot. State v. Cook, 3d Dist. Putnam No. 12-02-
12, 2003-Ohio-1794, ¶ 12.
{¶24} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
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