State v. Robinson , 2016 Ohio 7823 ( 2016 )

[Cite as State v. Robinson, 2016-Ohio-7823.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 4-16-10
v.
JAMISH L. ROBINSON, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 4-16-11
v.
JAMISH L. ROBINSON, OPINION
DEFENDANT-APPELLANT.
Appeals from Defiance County Common Pleas Court
Trial Court Nos. 15 CR 12248 and 15 CR 12140
Judgments Affirmed
Date of Decision: November 21, 2016
APPEARANCES:
W. Alex Smith for Appellant
Russell R. Herman for Appellee
Case Nos. 4-16-10, 4-16-11
PRESTON, J.
{¶1} Defendant-appellant, Jamish L. Robinson (“Robinson”), appeals the
April 20, 2016 judgment entries of sentence of the Defiance County Court of
Common Pleas. On appeal, he argues that the trial court erred by denying his
motions to suppress evidence seized as a result of the execution of a search warrant
that Robinson argues was not based on probable cause. For the reasons that follow,
we affirm the judgments of the trial court.
{¶2} These cases stem from the execution of a search warrant issued for
Robinson’s residence, after investigators learned that Robinson was the manager of
Talk-N-Win, a suspected illegal-gambling establishment located at the Northtowne
Mall in Defiance, Ohio. On February 5, 2015, the Defiance County Grand Jury
indicted Robinson on: four counts of aggravated trafficking in drugs in violation of
R.C. 2925.03(A)(1), (C)(1)(a), fourth-degree felonies; one count of aggravated
trafficking in drugs in violation of R.C. 2925.03(A)(1), (C)(1)(b), a third-degree
felony; three counts of trafficking in drugs in violation of R.C. 2925.03(A)(1),
(C)(2)(a), fifth-degree felonies; two counts of aggravated possession of drugs in
violation of R.C. 2925.11(A), (C)(1)(a), fifth-degree felonies; and one count of
possession of cocaine in violation of R.C. 2925.11(A), (C)(4)(a), a fifth-degree
felony. (Case No. 15 CR 12140, Doc. No. 1). That case was assigned case No. 15
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CR 12140, and Robinson pled not guilty to the counts of the indictment. (See Case
No. 15 CR 12140, Doc. No. 4).
{¶3} On May 13, 2015, the Defiance County Grand Jury indicted Robinson
on four counts of receiving stolen property in violation of R.C. 2913.51(A), fourth-
degree felonies. (Case No. 15 CR 12248, Doc. No. 1). That case was assigned case
No. 15 CR 12248, and Robinson pled not guilty to the counts of that indictment.
(See Case No. 15 CR 12248, Doc. No. 5).
{¶4} On October 19, 2015, Robinson filed motions to suppress evidence in
each case. (Case No. 15 CR 12140, Doc. No. 15); (Case No. 15 CR 12248, Doc.
No. 7). In those identical motions, Robinson argued that the search warrant was not
supported by probable cause because there was no evidence that illegal gambling
took place at his residence or that any part of Talk-N-Win was run out of his
residence. (Id.); (Id.). The trial court held a hearing on Robinson’s motions to
suppress on November 24, 2015. (Nov. 24, 2015 Tr. at 3). The trial court denied
Robinson’s motions to suppress on December 7, 2015. (Case No. 15 CR 12140,
Doc. No. 16); (Case No. 15 CR 12248, Doc. No. 8).
{¶5} The trial court held a change-of-plea hearing on February 9, 2016. (Feb.
9, 2016 Tr. at 2). Pursuant to a plea agreement, Robinson pled no contest: in case
No. 15 CR 12140, to the count of possession of cocaine in violation of R.C.
2925.11(A), (C)(4)(a), and to one of the counts of aggravated possession of drugs
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in violation of R.C. 2925.11(A), (C)(1)(a); in case No. 15 CR 12248, to two of the
counts of receiving stolen property in violation of R.C. 2913.51(A). (Id. at 4-5, 11).
The trial court accepted Robinson’s pleas and found him guilty on those counts. (Id.
at 12-13); (Case No. 15 CR 12140, Doc. No. 18); (Case No. 15 CR 12248, Doc. No.
10).
{¶6} On April 12, 2016, the trial court sentenced Robinson and, consistent
with the plea agreement, dismissed the remaining counts of the indictments. (Apr.
12, 2016 Tr. at 2, 5); (Case No. 15 CR 12140, Doc. No. 26); (Case No. 15 CR 12248,
Doc. No. 18). The trial court filed its judgment entries of sentence on April 20,
2016. (Case No. 15 CR 12140, Doc. No. 26); (Case No. 15 CR 12248, Doc. No.
18).
{¶7} Robinson timely filed notices of appeal in each case. (Case No. 15 CR
12140, Doc. No. 23); (Case No. 15 CR 12248, Doc. No. 15). He raises one
assignment of error for our review.
Assignment of Error
The trial court erred when they [sic] overruled the motion to
suppress evidence in violation of the 4th and 14th Amendment
[sic] to the United States Constitution and Article I Section 14 of
the Ohio Constitution.
{¶8} In his sole assignment of error, Robinson argues that the trial court erred
by denying his motion to suppress because the “[search] warrant should not have
been issued due to insufficient, credible information in the supporting affidavit.”
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(Appellant’s Brief at 5). Specifically, Robinson argues “that there was no indication
of criminal activity occurring in the home when the target was Mr. Robinson’s place
of employment.” (Id.).
{¶9} 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).
{¶10} Robinson argues that the search warrant was not supported by
probable cause, in violation of his constitutional rights. The Fourth Amendment to
the United States Constitution and Article I, Section 14 of the Ohio Constitution
generally prohibit warrantless searches and seizures, and any evidence obtained
during an unlawful search or seizure will be excluded from being used against the
defendant. State v. Jenkins, 3d Dist. Union No. 14-10-10, 2010-Ohio-5943, ¶ 9;
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Case Nos. 4-16-10, 4-16-11
State v. Steinbrunner, 3d Dist. Auglaize No. 2-11-27, 2012-Ohio-2358, ¶ 12.
“Neither the Fourth Amendment to the United States Constitution nor Section 14,
Article I of the Ohio Constitution explicitly provides that violations of its provisions
against unlawful searches and seizures will result in the suppression of evidence
obtained as a result of such violation, but the United States Supreme Court has held
that the exclusion of evidence is an essential part of the Fourth Amendment.”
Jenkins at ¶ 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).
{¶11} “A warrant must be based on probable cause, supported by an oath or
affirmation, and contain a particular description of ‘the place to be searched, and the
persons or things to be seized.’” State v. Amodio, 9th Dist. Medina No. 11CA0048-
M, 2012-Ohio-2682, ¶ 7, quoting the Fourth Amendment to the U.S. Constitution.
“The probable cause standard falls below both the reasonable doubt and
preponderance of the evidence standards.” State v. Ortega, 3d Dist. Hancock No.
5-11-46, 2012-Ohio-5953, ¶ 25. The Supreme Court of Ohio articulated the
probable-cause standard required to support a search warrant:
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
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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 (1989), paragraph one of the syllabus, quoting
Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317 (1983). In other words,
“[t]he amount of proof sufficient for a probable cause determination does not
necessarily require certainty that criminal activity is occurring at the defendant’s
premises.” State v. Garza, 3d Dist. Henry No. 7-13-04, 2013-Ohio-5492, ¶ 32.
Only the probability—and not a prima facie showing—of criminal activity is the
standard of probable cause. Id., citing George at 329.
{¶12} The Supreme Court of Ohio also articulated the standard applied in
reviewing the sufficiency of probable cause:
In reviewing the sufficiency of probable cause in an affidavit
submitted in support of a search warrant issued by a 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
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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, citing Gates, 462 U.S. 213, 103 S.Ct. 2317.
{¶13} We conclude that the judge who issued the search warrant had a
substantial basis for concluding that probable cause existed. Special Agent Edward
Biederstedt (“Biederstedt”) of the Bureau of Criminal Identification and
Investigation swore to the affidavit supporting the search warrant application. (Nov.
24, 2015 Tr., Ex. 1). Biederstedt stated that he has 27 years of law-enforcement
experience and that he had good cause to believe that Robinson’s residence
contained evidence of illegal gambling, money laundering, and engaging in a pattern
of corrupt activity. (Id. at 1-3). Biederstedt averred that he assisted Major Case
Investigator Damon Roberts (“Roberts”) in the covert investigation of Talk-N-Win.
(Id.). The affidavit details visits that Roberts made to Talk-N-Win on November 29
and 30, 2014, during which Roberts used covert funds to obtain a “player’s card” to
play games at gaming terminals. (Id. at 4-9). During each of those visits, Roberts
asked that a certain sum of money be placed on his player’s card, then he played
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games at gaming terminals and, when he was finished playing, retrieved winnings
from his player’s card in excess of the initial sum on his player’s card. (Id.).
{¶14} The affidavit also details a visit that Biederstedt and Roberts made to
Talk-N-Win on December 14, 2014. (Id. at 9-11). During that visit, they observed
“behind the counter/desk” a man later identified as Robinson. (Id. at 9). The amount
on Biederstedt’s player’s card increased as he played games at gaming terminals,
and he eventually retrieved winnings from his player’s card in excess of the initial
sum on his player’s card. (Id.). When Biederstedt approached the counter with his
player’s card after ending play, there was a different person—a female—behind the
counter. (Id. at 10-11). Roberts and Biederstedt were at Talk-N-Win for
approximately 35 minutes. (Id. at 9, 11). Biederstedt averred that he “received
previous credible source information that Jamish Robinson is the Manager of Talk-
N-Win.” (Id. at 11).
{¶15} Biederstedt also averred that, on December 16, 2014, he and a deputy
observed Robinson leave his residence—an apartment—in a vehicle registered to
him. (Id.). The vehicle went from the “residence to the rear parking lot of the
Northtowne Mall, near the entrance to the Talk-N-Win.” (Id.). Biederstedt later
observed Robinson “in front of the entrance to the Talk-N-Win.” (Id.). “A short
time later Robinson exited the rear entrance of the mall and entered back in his
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vehicle.” (Id.). He exited the mall parking lot and returned to his residence. (Id.).
Biederstedt continues in his affidavit:
7. Special Agent Biederstedt states that the evidence obtained from
this investigation has provided information concerning illegal
gambling in the Defiance, Defiance County, Ohio area.
8. Special Agent Biederstedt is aware that illegal gambling
activities involve the transfer of large quantities of cash and such
transactions involve records and documents relating to illegal
gambling and accompanying cash transfers.
9. Special Agent Biederstedt holds personal knowledge–that
individuals involved in gambling activities maintain log books,
records, payment receipts, notes, customer lists, ledgers, and other
records and documents, stored on their computers in electronic
format. Special Agent Biederstedt is also aware that these records
may be kept and stored at the personal residences of the owners and/or
managers of the business. Through the technology available today
individuals can access records and perform business functions
through the leisure of their home residence.
10. Special Agent Biederstedt [sic] personal experience and training,
is aware that individuals involved in illegal gambling activity and/or
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money laundering may maintain their own security by use of firearms
and other weapons.
(Id.).
{¶16} We conclude that the judge who issued the search warrant had a
substantial basis for concluding that, given all the circumstances set forth in
Biederstedt’s affidavit, there was a fair probability that evidence of illegal gambling,
money laundering, and engaging in a pattern of corrupt activity would be found at
Robinson’s residence. During their investigation, Biederstedt and Roberts engaged
in illegal gambling at Talk-N-Win. Biederstedt observed Robinson behind the
counter/desk at Talk-N-Win and learned during his investigation that Robinson was
the manager of Talk-N-Win. He also observed Robinson leave his residence, enter
Talk-N-Win for a short time, then return to his residence. Biederstedt also averred
that today’s technology allows managers of illegal gambling operations to perform
business functions remotely, including from their homes. We hold that, given all of
these circumstances, the issuing judge had a substantial basis for concluding that
probable cause existed. See State/City of Alliance v. Birch, 5th Dist. Stark No.
1997CA00333, 1998 WL 525799, *3 (Mar. 30, 1998) (“find[ing] sufficient
evidence to support probable cause for the issuance of the search warrant” for the
residence of the defendant, who was observed conducting gambling activities at a
lounge and travelling between his residence and the lounge, and who told an officer
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who placed a bet that “he had to go home to ‘get the odds and the lines, the latest
from Vegas’”).
{¶17} For these reasons, the trial court did not err in denying Robinson’s
motions to suppress. Robinson’s assignment of error is overruled.
{¶18} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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