State v. Battles , 2021 Ohio 3005 ( 2021 )

[Cite as State v. Battles, 2021-Ohio-3005.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant, :
No. 19AP-641
v. : (C.P.C. No. 18CR-2757)
Carolyn Battles, : (REGULAR CALENDAR)
Defendant-Appellee. :
State of Ohio, :
Plaintiff-Appellant, :
No. 19AP-653
v. : (C.P.C. No. 18CR-2756)
Kenneth Slaughter, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on August 31, 2021
On brief: [G. Gary Tyack], Prosecuting Attorney, and
Daniel J. Stanley, for appellant. Argued: Seth L. Gilbert.
On brief: Carpenter Lipps & Leland LLP, and Kort
Gatterdam, for appellee Carolyn Battles.
On brief: Yeura Venters, Public Defender, and Robert D.
Essex, for appellee Kenneth Slaughter. Argued: Robert D.
Essex.
APPEALS from the Franklin County Court of Common Pleas
Nos. 19AP-641 and 19AP-653 2
KLATT, J.
{¶ 1} In these coordinated appeals, plaintiff-appellant, State of Ohio ("the state"),
appeals a judgment of the Franklin County Court of Common Pleas granting the motion to
suppress filed by defendants-appellees, Kenneth Slaughter and Carolyn Battles.1 For the
following reasons, we reverse that judgment and remand this case to the trial court for
further proceedings.
{¶ 2} This case began on March 26, 2018 when a confidential informant ("CI")
arranged for Detective Sherard Pollard of the Franklin County Sheriff's Office Special
Investigations Unit ("SIU") to purchase one-half ounce of cocaine for $600 from Battles,
who was known to the CI as "Cece." Battles utilized a cell phone to coordinate the drug deal
with Pollard and the CI.
{¶ 3} At 12:33 p.m., Pollard picked up the CI at a Goodwill store located at 2550 N.
High Street and drove to a United Dairy Farmers ("UDF") store located at 8480 N. High
Street. Upon arrival, the CI called Battles. Shortly thereafter, a white Ford Edge bearing
New York registration number HSJ-9737 pulled into the parking lot and parked on the
north side of the UDF. Pollard and the CI exited their vehicle and entered the back seat of
the white Ford Edge. A white female, later identified as Susan Sena, was in the driver's seat;
Battles was in the front passenger seat. Pollard exchanged greetings with Battles and asked
if he could see the cocaine. Battles responded that she wanted Pollard to first show her the
money. Pollard produced $600 in prerecorded funds and placed the money on the center
console. Battles handed Pollard a plastic baggie containing suspected cocaine. Pollard and
the CI exited the white Ford Edge; Pollard then returned the CI to the Goodwill store.
{¶ 4} On an unspecified date (presumably subsequent to the above-noted
transaction), Pollard drove to a Taco Bell store located at 2553 N. High Street to meet the
CI. The CI informed him that Sena would be traveling to the Taco Bell on foot. At
approximately 1:30 p.m., Sena arrived and got in the back of Pollard's vehicle. From her
jacket pocket, Sena produced a plastic baggie containing suspected cocaine and handed it
to Pollard. In exchange for the cocaine, Pollard gave Sena $1,200 in prerecorded funds.
Sena then exited Pollard's vehicle and proceeded on foot toward High Street. SIU detectives
1 By journal entry issued December 13, 2020, this court granted the state's motion to coordinate the appeals.
Nos. 19AP-641 and 19AP-653 3
conducting surveillance of Sena observed her enter a residence located at 59 W. Blake
Avenue.
{¶ 5} On an unspecified date (presumably sometime after March 26) at
approximately 11:09 p.m., two SIU detectives began surveilling a residence located at 8577
Clover Glade in Lewis Center, Ohio ("Clover Glade"). On an unspecified date at 11:14 a.m.,
a tan Acura MDX bearing Ohio registration number HCJ-9373 pulled into the driveway
and parked. At 11:15 a.m., an unknown black male wearing a gray sweat suit and red hat
exited the passenger side of the Acura and entered Clover Glade through the front door; an
unknown black female remained seated in the driver's seat. At 11:18 a.m., three adults,
including Battles and the black male who had been in the Acura, exited Clover Glade
accompanied by three juveniles. At 11:20 a.m., the black male entered the passenger side
of the Acura; two of the juveniles got in the back seat. At 11:25 a.m., Battles, along with an
unknown black female and a juvenile, entered the same white Ford Edge involved in the
March 26 transaction. Both vehicles then left Clover Glade.
{¶ 6} On April 10, 2018, a CI arranged for Pollard to purchase from Battles two
ounces of cocaine for $2,200. Battles utilized the same cell phone to coordinate the
transaction as that used on March 26. On an unspecified date (presumably April 10, 2018)
at approximately 3:50 p.m., Pollard picked up the CI from a Tim Horton's store located at
8333 N. High Street and drove to the same UDF store that was the site of the March 26
transaction. The CI called the number provided by Battles; a person identifying himself as
Ray answered the call. The CI informed Ray of their arrival. The same white Ford Edge
involved in the March 26 drug deal entered the parking lot and parked on the north side of
the UDF. Pollard and the CI exited their vehicle and entered the back seat of the white Ford
Edge. As in the March 26 transaction, Sena was in the driver's seat and Battles was in the
front passenger seat. Battles displayed a plastic baggie containing suspected cocaine.
Pollard provided Battles with $2,200 in prerecorded funds. Battles gave the plastic baggie
containing the cocaine to Pollard. Pollard and the CI then exited the white Ford Edge.
Surveilling SIU detectives followed the white Ford Edge to Clover Glade and observed Sena
and Battles go inside.
{¶ 7} On April 13, 2018, Pollard sought a warrant to search Clover Glade. The basis
for the warrant was a four-page affidavit in which Pollard relayed the facts stated above.
Nos. 19AP-641 and 19AP-653 4
Pollard further stated that he "has good cause to believe and does believe * * * that evidence
of * * * Drug Trafficking * * * [is] being kept in 8577 Clover Glade * * * known to be the
residence of [Battles] and Kenneth Slaughter." He added that during his 17-year law
enforcement career, he received O.P.O.T.A. certification, attended numerous training
conferences and seminars, and participated in several narcotics investigations. (State's Ex.
A, Search Warrant Aff. at 1.)
{¶ 8} Based solely on the information contained in the affidavit, a Delaware County
Municipal Court judge issued a search warrant for Clover Glade. The warrant described the
residence and its "primary residents" as Kenneth Slaughter and [Battles]." (State's Ex. A,
Warrant to Search at 1.) The warrant authorized the search for, inter alia, controlled
substances and packaging materials, firearms, documents and records related to drug
trafficking, cellular phones, indicia of occupancy, residency and/or ownership of the
premises or vehicles located on the premises, and currency.
{¶ 9} On June 8, 2018, a Franklin County Grand Jury returned a six-count
indictment against Slaughter, Battles, and Sena,2 charging them with violations of various
drug trafficking and firearm and forfeiture-related specifications. The indictment alleged
that the offenses occurred on March 26, April 5, April 10, and April 17, 2018. On July 26,
2019, Slaughter moved to suppress all evidence obtained in the search, arguing that the
search warrant was invalid because the supporting affidavit failed to establish probable
cause.
{¶ 10} The trial court held a hearing on the motion to suppress on August 20 and 21,
2019. With Slaughter's consent, and without objection from the state, Battles joined in the
motion. The parties set forth arguments in support of their respective positions; no
evidence was adduced. At the conclusion of the hearing, the trial court determined that the
search warrant was invalid because the affidavit supporting it failed to establish probable
cause. Specifically, the court found that the facts alleged in the affidavit did not create a
sufficient nexus between the alleged criminal activity and Clover Glade. The trial court
further determined that the affidavit so lacked indicia of probable cause that no objectively
reasonable police officer could in good faith rely on the warrant.
2 The charges against Sena were dismissed on April 11, 2019 pursuant to her death.
Nos. 19AP-641 and 19AP-653 5
{¶ 11} On September 5, 2019, the state filed a post-hearing memorandum contra.
In it, the state set forth several facts not included in the search warrant affidavit as well as
facts pertaining to execution of the warrant, including a description of the evidence seized
from Clover Glade. The state requested that the trial court reconsider its determination
that an objectively reasonable police officer could not in good faith rely on the warrant. The
state further urged that in analyzing the good-faith exception, the trial court could look
beyond the four corners of the affidavit to evidence known by the investigators but not
presented to the judge who issued the warrant.
{¶ 12} On September 12, 2019, the court held a hearing on the matters raised in the
state's memorandum contra. The state requested that the court permit Pollard to testify as
to facts known to him but not included in his search warrant affidavit. The trial court
denied that request; however, the court permitted Pollard to proffer sworn testimony
outside the court's presence.
{¶ 13} To that end, Pollard testified that he had been in the SIU for only one year at
the time he prepared the search warrant affidavit and that it was the first affidavit he had
ever drafted. He further averred that in addition to the facts set forth in the affidavit, he
was aware of the following additional information:
[C]ellular data pinging back to [the Clover Glade address],
moving surveillance from deal one, which was in March. We
had surveillance units following that Ford Edge after the deal
going back to Glover Glade.
After that deal, we placed a GPS tracker on that vehicle and
had surveillance units at that house observing Ms. Battles and
an unknown white female we later identified as Susan Sena
exiting that house and entering back in with a key.
(Sept. 12, 2019 Suppression Hearing Tr. at 112.)
{¶ 14} Pollard further testified that the surveillance of Clover Glade referenced in
the search warrant affidavit resulted from the above noted facts.
{¶ 15} When questioned by the state as to how the "second deal in the affidavit * * *
relate[s] to Clover Glade," Pollard responded: "If you look at the GPS data, it shows that
that vehicle leaves from Clover Glade and goes over to Blake. Prior to the deal, it shows that
the vehicle leaves Clover Glade, goes to Blake and then Susan Sena comes out to do the
narcotics transaction on foot and goes back to Blake Avenue." Id. at 113. Pollard concurred
Nos. 19AP-641 and 19AP-653 6
in the state's assertion that the "second deal" was relevant to Clover Glade because the
affidavit indicated that the "second deal was at an undisclosed location, Sena walked there
and walked back. The GPS data shows how the car went from Glover Glade to Sena's place."
Id.{¶ 16} Regarding the relevance of the "third deal" to Clover Glade, Pollard averred,
"we had visual surveillance on the Clover Glade address prior to the deal. Once the call was
placed to set up * * * the meet location, moving surveillance established surveillance on the
house, the front door, and observed Ms. Battles and Susan Sena exit that house, enter the
vehicle and come directly to me. The deal was conducted and done as moving surveillance
followed Ms. Battles and Susan Sena back to that residence." Id. at 113-14.
{¶ 17} Finally, Pollard testified that the "ping order" on the cell phone he called to
set up the third drug deal demonstrated that the "vehicle and the phone were at the same
location," i.e., Clover Glade. Id. at 114-15.
{¶ 18} On September 18, 2019, the trial court issued an entry reiterating its findings
that the search warrant affidavit failed to establish probable cause to search Clover Glade
and so lacked indicia of probable cause that no objectively reasonable police officer could
in good faith rely on the warrant. Thus, the court granted the motion to suppress and
ordered exclusion of all evidence seized under the warrant.
{¶ 19} The state timely appeals, advancing three assignments of error for review:
[I]. The trial court erred in granting defendant's motion to
suppress evidence when the four corners of the affidavit
provided the issuing magistrate a substantial basis for
granting the warrant.
[II]. The trial court erred when it suppressed the evidence
without making any finding as to whether there was a culpable
violation of the Fourth Amendment.
[III]. The trial court erred in not considering evidence known
to the investigation but not presented to the issuing judge in
its good-faith analysis.
{¶ 20} We consider the state's first and second assignments of error together. These
assignments of error essentially contend that the search warrant affidavit established
probable cause to search Clover Glade, and, alternatively, that even if the affidavit did not
establish probable cause, the police executed the warrant in good faith. On these grounds,
Nos. 19AP-641 and 19AP-653 7
the state maintains that the trial court erred when it granted the defendants' motion to
suppress evidence obtained pursuant to the warrant.
{¶ 21} "The review of a motion to suppress is a mixed question of law and fact."
State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, ¶ 32, citing State v. Burnside, 100
Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. "The very nature of the questions presented requires
a case-by-case fact-driven analysis." Id., citing State v. Smith, 124 Ohio St.3d 163, 2009-
Ohio-6426, ¶ 14. "Moreover, when a reviewing court determines that a warrant should not
have been issued, it must then determine whether the good-faith exception applies, and
that question is a question of law, subject to de novo review by the appellate court." Id.,citing United States v. Leary, 846 F.2d 592, 606 (10th Cir.1988).
{¶ 22} The Fourth Amendment to the United States Constitution, applied to the
states through the Fourteenth Amendment, provides that "[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place to be searched, and
the persons or other things to be seized." Article I, Section 14 of the Ohio Constitution
similarly provides that "[t]he right of the people to be secure in their persons, houses,
papers, and possessions, against unreasonable searches and seizures shall not be violated;
and no warrant shall issue, but upon probable cause, supported by oath or affirmation,
particularly describing the place to be searched and the person and things to be seized."
See also R.C. 2933.22(A); Crim.R. 41(C).
{¶ 23} The state first contends that the search warrant affidavit established probable
cause to search Clover Glade. Ordinarily, "[w]hen determining whether a search warrant
affidavit demonstrates probable cause, a magistrate must ' "make a practical, common-
sense decision whether, given all the circumstances set forth in the affidavit before him [or
her], 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. Neil, 10th Dist. No. 14AP-981, 2016-Ohio-4762, ¶ 34,
quoting State v. George, 45 Ohio St.3d 325 (1989), paragraph one of the syllabus, quoting
Illinois v. Gates, 462 U.S. 213, 238-39 (1983).
In reviewing the sufficiency of probable cause in an affidavit
submitted in support of a search warrant issued by a
Nos. 19AP-641 and 19AP-653 8
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. Rather, the duty of a reviewing court is
simply to ensure that the magistrate had a substantial basis for
concluding that probable cause existed. In conducting any
after-the-fact scrutiny of an affidavit submitted in support of a
search warrant, trial and appellate courts 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.
George at paragraph two of the syllabus.
{¶ 24} "Probable cause means less evidence than would justify condemnation, so
that only the 'probability, and not a prima facie showing, of criminal activity is the standard
of probable cause.' " State v. Eal, 10th Dist. No. 11AP-460, 2012-Ohio-1373, ¶ 10, quoting
George at 329; State v. Allen, 10th Dist. No. 08AP-264, 2008-Ohio-6916, ¶ 28 (the
probable cause determination only depends on the fair probability of criminal activity, not
a prima facie demonstration of criminal activity). "[W]hen no oral testimony is presented
to the neutral and detached magistrate in conjunction with an affidavit for a search warrant,
the probable-cause determination is based on the four corners of the document."
Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, at ¶ 106; State v. Saxton, 10th Dist. No.
18AP-925, 2019-Ohio-5257, ¶ 21 (in general, the issuing judge or magistrate is confined to
the averments contained in the supporting affidavit to determine whether probable cause
supports a search warrant).
{¶ 25} "Special considerations to be taken into account when determining whether
to issue a search warrant include how stale the information relied upon is, when the facts
relied upon occurred, and whether there is a nexus between the alleged crime, the objects
to be seized, and the place to be searched." Castagnola at ¶ 34, citing 2 LaFave, Search and
Seizure, Section 3.7(a), (b), and (d). Further, "[w]hen considering whether a nexus exists
between the alleged crime and the place to be searched, ' "the circumstances must indicate
why evidence of illegal activity will be found in a particular place." ' " State v. Phillips, 10th
Dist. No. 15AP-1038, 2016-Ohio-5944, ¶ 14, quoting United States v. Washington, 380
F.3d 236, 240 (6th Cir.2004), quoting United States v. Carpenter, 360 F.3d 591, 594 (6th
Cir.2004).
Nos. 19AP-641 and 19AP-653 9
{¶ 26} Here, the search warrant affidavit indicates that on March 26, 2018, a CI
arranged a $600 controlled drug buy between Pollard and Battles. The transaction
occurred inside a white Ford Edge. Sometime after that transaction, police surveilling
Clover Glade observed Battles exit the residence and enter the same white Ford Edge
involved in the March 26 transaction. The affidavit further states that on April 10, 2018, a
CI arranged a $2,200 controlled drug buy between Pollard and Battles; that transaction
also occurred inside the white Ford Edge. Officers observed the white Ford Edge drive to
Clover Glade immediately following completion of the April 10 transaction.
{¶ 27} The state points out that Battles conducted two of the three controlled buys
mentioned in the affidavit inside the white Ford Edge and was observed exiting Clover
Glade and entering that same vehicle between those two events. The state further notes
that Battles and Sena drove immediately to Clover Glade after conducting the $2,200
transaction. The state argues that these facts provided the issuing judge with a substantial
basis to conclude that a nexus existed between Clover Glade and the alleged criminal
activity, and, particularly regarding the $2,200 transaction, probable cause to believe that
the proceeds of that transaction would be found in the residence. In support, the state
primarily relies on three cases from this court finding that temporal proximity between a
controlled drug transaction and arrival at a residence provides an issuing authority a
substantial basis to conclude that a nexus exists between the place to be searched and the
alleged criminal activity and, at the least, probable cause to believe proceeds of a drug
transaction would be located in the residence. See Saxton, 10th Dist. No. 18AP-925, 2019-
Ohio-5257, at ¶ 24; State v. Young, 10th Dist. No. 18AP-845, 2019-Ohio-4639, at ¶ 19;
Phillips at ¶ 26.
{¶ 28} The state further maintains that the three-day delay between the April 10
transaction and the April 13 issuance of the warrant did not render the information
included in the affidavit stale and thus insufficient to support probable cause. " 'An affidavit
in support of a search warrant must present timely information and include facts so closely
related in time of issuing the warrant as to justify a finding of probable cause at that time.' "
Eal, 10th Dist. No. 11AP-460, 2012-Ohio-1373, at ¶ 21, quoting State v. Ingold, 10th Dist.
No. 07AP-648, 2008-Ohio-2303, ¶ 22. "The test for staleness is simply 'whether the alleged
facts justify the conclusion that contraband is probably on the person or premises to be
Nos. 19AP-641 and 19AP-653 10
searched at the time the warrant issues.' " Id., quoting Ingold. "The factors to consider in
determining whether the information in the affidavit is stale include the character of the
crime, the criminal, the thing to be seized and in particular whether it is perishable, the
place to be searched, and the nature of the incident as either isolated or ongoing criminal
activity." Id., citing Ingold at ¶ 23. The state maintains that because the April 10
transaction involved such a large sum, i.e., $2,200, the issuing judge could conclude that
there was a fair probability that at least a portion of those proceeds would still be in the
residence three days later, i.e., at the time the warrant was issued.
{¶ 29} We need not resolve the probable cause issue, however, because even if we
were to determine that the search warrant affidavit did not furnish the issuing judge with a
substantial basis for concluding that there was probable cause to search Clover Glade, we
are inclined to uphold the search based upon the "good faith exception" to the exclusionary
rule set forth in United States v. Leon, 468 U.S. 897 (1984), and adopted by the Supreme
Court of Ohio in State v. Wilmoth, 22 Ohio St.3d 251 (1986). See, e.g., Allen, 10th Dist. No.
08AP-264, 2008-Ohio-6916, at ¶ 33 ("we further conclude that, even if probable cause did
not exist, the police executed the search warrant in good faith under Leon"); Washington,
380 F.3d 236 at 239 (upon finding that the good-faith exception to the exclusionary rule
applied, the court assumed without deciding that probable cause did not exist).
{¶ 30} "When evidence is obtained in violation of the Fourth Amendment, the
judicially developed exclusionary rule usually precludes its use in a criminal proceeding
against the victim of the illegal search and seizure." State v. Johnson, 48 Ohio App.3d 256,
259 (4th Dist.1988), citing Illinois v. Krull, 480 U.S. 340, 347 (1987). However, under the
good-faith exception, evidence obtained during a search conducted pursuant to a warrant
that is unsupported by probable cause will not be excluded if the officers who obtained the
evidence acted reasonably in relying on the warrant. George, 45 Ohio St.3d 325 at
paragraph three of the syllabus, following Leon ("The Fourth Amendment exclusionary rule
should not be applied so as to bar the use in the prosecution's case-in-chief of evidence
obtained by officers acting in objectively reasonable reliance on a search warrant issued by
a detached and neutral magistrate but ultimately found to be unsupported by probable
cause.").
Nos. 19AP-641 and 19AP-653 11
{¶ 31} The good-faith exception to the exclusionary rule is limited in its application.
As noted in George, the Leon court cautioned that an officer's reliance on the magistrate or
judge's probable cause determination "must be objectively reasonable." (Emphasis sic.)
George at 331. Thus, "[s]uppression remains an appropriate remedy" in four specific
circumstances: (1) the supporting affidavit contained information the affiant knew to be
false or would have known to be false but for reckless disregard for the truth; (2) the issuing
judge wholly abandoned his [or her] judicial role; (3) the warrant was based on an affidavit
so lacking in indicia of probable cause as to render official belief in its existence entirely
unreasonable, or (4) the warrant was so facially deficient in terms of particularity that the
executing officers could not reasonably presume it to be valid. Id., citing Leon at 923.
{¶ 32} In the present case, only the third Leon circumstance is at issue. Indeed, the
trial court concluded that the warrant was based on an affidavit so lacking in indicia of
probable cause that no objectively reasonable police officer could rely on it.
{¶ 33} Jurisprudence from the United States Court of Appeals for the Sixth Circuit
is both instructive and persuasive on the "indicia of probable cause" issue. An affidavit
lacks the requisite indicia of probable cause if it is a "bare bones" affidavit. United States
v. Ward, 967 F.3d 550, 554 (6th Cir.2020), quoting United States v. White, 874 F.3d 490,
496 (6th Cir.2017). The inquiry into whether an affidavit is so bare bones as to preclude
application of the good-faith exception is a less demanding inquiry than that involved in
determining whether an affidavit provides a substantial basis for the judge's conclusion of
probable cause. United States v. Laughton, 409 F.3d 744, 748 (6th Cir.2005). "An affidavit
cannot be labeled 'bare bones' simply because it lacks the requisite facts and inferences to
sustain the magistrate's probable-cause finding; rather, it must be so lacking in indicia of
probable cause that, despite a judicial officer having issued a warrant, no reasonable police
officer would rely on it." (Emphasis sic.) White at 496, citing United States v. Helton, 314
F.3d 812, 824 (6th Cir.2003). "The distinction is not merely semantical. There must be
daylight between the 'bare-bones' and 'substantial basis' standard if Leon's good-faith
exception is to strike the desired balance between safeguarding Fourth Amendment rights
and facilitating the criminal justice system's truth-seeking function." Id., citing Leon at
906-07 and United States v. Carpenter, 360 F.3d 591, 595 (6th Cir.2004). "Only when law
enforcement officials operate in ' "deliberate," "reckless," or "grossly negligent" disregard
Nos. 19AP-641 and 19AP-653 12
for Fourth Amendment rights" will the "heavy toll" of suppression "pay its way." ' " (Further
citations omitted.) Id., quoting Davis v. United States, 564 U.S. 229, 237-38 (6th Cir.2011).
"Otherwise, 'when the police act with an objectively "reasonable good-faith belief" that their
conduct is lawful,' excluding evidence recovered as a result of a technically deficient
affidavit serves no useful purpose under the exclusionary rule." Id., quoting Davis at 238,
quoting Leon at 909, 919. "We must therefore find that the defects in an affidavit are
apparent in the eyes of a reasonable [police officer] before faulting an executive official for
complying with his or her duty to execute a court-issued order." Id., citing Leon at 921.
{¶ 34} "To elude the 'bare bones' label, the affidavit must state more than
'suspicions, or conclusions, without providing some underlying factual circumstances
regarding veracity, reliability, and basis of knowledge' and make 'some connection' between
the illegal activity and the place to be searched." (Emphasis sic.) Ward at 554, quoting
United States v. Christian, 925 F.3d 305, 312-13 (6th Cir.2019). "If the reviewing court is
'able to identify in the averring officer's affidavit some connection, regardless of how remote
it may have been'—'some modicum of evidence, however, slight'—'between the criminal
activity at issue and the place to be searched,' then the affidavit is not bare bones and official
reliance on it is reasonable." (Emphasis sic.) White at 496, quoting Laughton at 749-50.
"We read the affidavit holistically and examine the totality of the circumstances in making
this inquiry." Ward at 554, citing White at 502 (a court must read the affidavit holistically,
examining the totality of the circumstances and employing a heathy dose of common
sense). "If an inference is obvious from the factual context, a reviewing court should
indulge it." White at 502, citing United States v. Greene, 250 F.3d 471, 479 (6th Cir.2001).
{¶ 35} Under this legal framework, we conclude, after reading the affidavit
holistically, examining the totality of the circumstances, and employing a healthy dose of
common sense, that it is not a "bare bones" affidavit. The affidavit contains much more
than simply "suspicions or conclusions." The affidavit includes sufficient factual content to
establish "some connection" between suspected illegal activity, i.e., drug trafficking, and
Clover Glade. In particular, the affidavit includes detailed facts about all three controlled
drug buys, including the dates of the first and third transactions and Pollard's personal
involvement in those transactions. The affidavit also states that the first and third
controlled buys occurred inside the white Ford Edge, that the white Ford Edge was
Nos. 19AP-641 and 19AP-653 13
observed at the Clover Glade residence between those two transactions, and that the white
Ford Edge traveled to Clover Glade immediately following completion of the third
controlled buy. Because the affidavit establishes "some connection" between the alleged
criminal activity and the place to be searched, the search falls within the good-faith
exception to the exclusionary rule set forth in Leon and should be upheld even if the warrant
was lacking in probable cause. Consequently, we sustain the state's second assignment of
error. Such disposition renders the first assignment of error moot.
{¶ 36} In its third assignment of error, the state contends that the trial court erred
in its good-faith analysis by failing to consider the testimony proffered by Pollard regarding
facts known to the investigation but not presented to the issuing judge.
{¶ 37} In State v. Dibble, 159 Ohio St.3d 322, 2020-Ohio-546, the Supreme Court
of Ohio held that in deciding whether the good-faith exception to the exclusionary rule
applies to a search conducted under a search warrant, a trial court can consider extrinsic
evidence beyond the four corners of a search warrant affidavit in the form of sworn
statements made by a police officer to the judge at the time the warrant was approved. Id.In the present case, because Pollard did not provide sworn testimony to the judge at the
time the warrant was approved, the trial court limited its good-faith analysis to the four
corners of the search warrant affidavit. Dibble, decided after the trial court granted the
motion to suppress in this case, did not invalidate the trial court's four-corners analysis;
rather, it essentially reinforced it. Thus, the trial court did not err in its good-faith analysis
by failing to consider Pollard's proffered testimony. However, as we determined in the
second assignment of error, the trial court's four-corners, good-faith analysis was
erroneous. The third assignment of error is therefore moot.
{¶ 38} In conclusion, the state's second assignment of error is sustained, and the
first and third assignments of error are moot. The judgment of the Franklin County Court
of Common Pleas is reversed, and this matter is remanded to the trial court for further
proceedings consistent with this decision.
Judgment reversed; case remanded.
BROWN and SADLER, JJ., concur.