State v. Long , 2020 Ohio 4090 ( 2020 )

[Cite as State v. Long, 2020-Ohio-4090.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals Nos. WD-19-021
WD-19-022
Appellee
Trial Court Nos. 2018CR0141
v. 2017CR0556
Stephen D. Long DECISION AND JUDGMENT
Appellant Decided: August 14, 2020
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Neil S. McElroy, for appellant.
*****
MAYLE, J.
{¶ 1} In this consolidated appeal, appellant, Stephen Long, appeals the March 8,
2019 judgments of the Wood County Court of Common Pleas sentencing him to an
aggregate prison term of ten years. For the following reasons, we affirm.
I. Background and Facts
{¶ 2} On November 16, 2017, Long was indicted on five counts of pandering
sexually-oriented matter involving a minor in violation of R.C. 2907.322(A)(1), all
second-degree felonies, and one count of possessing criminal tools in violation of R.C.
2923.24(A), a fifth-degree felony. On March 22, 2018, the grand jury issued a second
indictment, charging Long with an additional eight counts of pandering sexually-oriented
matter involving a minor in violation of R.C. 2907.322(A)(1), all second-degree felonies,
and two counts of illegal use of a minor in nudity-oriented material or performance in
violation of R.C. 2907.323(A)(1), both second-degree felonies.
{¶ 3} The facts relevant to this appeal are largely drawn from the affidavit
submitted by Perrysburg Police Division (“PPD”) Detective Sergeant Mark Baumgardner
with his application for a warrant to search Long’s home. According to the affidavit, on
May 1, 2017, a “confidential informant” made a complaint to the PPD that the resident of
515 East Second Street in Perrysburg was masturbating to child pornography. Although
there is very little information about the “informant” in the affidavit, Baumgardner
implied that the informant was Long’s neighbor. For example, Baumgardner said that the
informant “could see inside the residence of 515 East Second Street from the interior of
[the informant’s] residence * * *” and “noticed what he thought could be child
pornography, from his window, and then decided to get a closer look.” To do so,
Baumgardner said that the informant “went outside of his residence and walked up to the
window on the southeast corner of 515 East Second Street * * *.” The informant also
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knew that the person in the home watching the videos was Long and that Long was the
only person who lived at 515 East Second Street.
{¶ 4} When the investigating officer, Officer Patrick McGuffin of the PPD,
responded to the informant’s home, the informant told McGuffin that he could see Long
sitting in front of a computer through the window. The informant “observed what he
believed to be child pornography on the screen.” The informant walked outside to get a
closer look and tried to record video of what he saw, but the video did not turn out
clearly.
{¶ 5} From inside the informant’s house, McGuffin could see Long sitting in front
of a computer monitor inside his house, but did not see any child pornography on the
screen. The informant offered to show McGuffin the route he took to peer in Long’s
window and took McGuffin “out of the east side of [the informant’s] residence and
walked around back, and then up the driveway of 515 East Second Street near the
window on the southeast corner of the residence at 515 East Second Street.”
{¶ 6} When McGuffin looked in the window, he saw “a white male with medium-
to short-brown hair” sitting at a desk with two computer monitors on it. He saw several
video clips on the right monitor that showed two female children—who McGuffin
estimated to be five or six years old—sucking on an adult male’s penis.
{¶ 7} Baumgardner followed up on McGuffin’s investigation by interviewing the
informant. During the interview, the informant explained that he first noticed that the
blinds on Long’s window were open and that Long was sitting at the computer. He then
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noticed, from his window, what looked like a video of a “small child in a red night gown
[sic] or dress slowly being taken off,” and saw that Long appeared to be masturbating, so
he decided to investigate further. The informant went up to Long’s window and saw a
video of a female child who was approximately ten years old using a vibrator on her bare
vagina. The informant showed Baumgardner the video he recorded while looking in
Long’s window, but Baumgardner said that it was “difficult to make out what is on the
screen with clarity.”
{¶ 8} Based on the affidavit, the judge of the Perrysburg Municipal Court granted
a search warrant that yielded videos and images of children engaged in sexual acts and
resulted in the indictments of Long.
{¶ 9} Long filed two motions to suppress. In the first, he argued that the affidavit
in support of the search warrant did not contain sufficient information to show that the
PPD had probable cause to search Long’s home because Baumgardner relied on facts
provided by a “confidential informant,” but did not provide any information about the
reliability and veracity of the informant, and McGuffin corroborated the informant’s
information by illegally trespassing on the curtilage of Long’s home.
{¶ 10} In response to the first motion to suppress, the state argued that the
municipal court judge’s probable-cause determination was proper because information
from a citizen informant is considered inherently more reliable than information from a
confidential informant, and Baumgardner “errantly” describing Long’s neighbor as a
“confidential informant” did not affect the veracity of the neighbor’s information.
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Additionally, the PPD could rely on the neighbor’s information because McGuffin
corroborated the information. Moreover, the state argued, McGuffin saw the child
pornography through a window with the blinds open while standing on Long’s driveway,
which was an area impliedly open to the public, so anything McGuffin saw was in plain
view and was not obtained in violation of Long’s constitutional rights.
{¶ 11} In the second motion to suppress, Long requested a hearing pursuant to
Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), alleging that
Baumgardner knowingly and intentionally, or with reckless disregard for the truth,
included in his affidavit false statements that were necessary to the finding of probable
cause. He claimed that Baumgardner omitted from his affidavit a statement regarding the
reliability of the confidential informant and admitted that McGuffin was initially unable
to confirm the informant’s report that Long was viewing child pornography. Long also
claimed that Baumgardner failed to mention in his affidavit that, in order to look in
Long’s window and confirm what was on Long’s computer monitor, the informant took
McGuffin through a row of lilac bushes that divided Long’s yard from the neighbor’s
yard and trespassed in Long’s enclosed backyard before ending up on Long’s driveway
and peering in Long’s window.
{¶ 12} In response to the request for a Franks hearing, the state argued that Long
was not entitled to a hearing because Baumgardner did not put any misstatements or lies
in the affidavit, and, even if he did, the remaining information in the warrant was
sufficient to support the municipal court judge’s probable-cause determination. The state
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contended that the path McGuffin took to reach Long’s window was immaterial to
whether there was probable cause to search Long’s house, so omission of the path from
the warrant did not affect the probable-cause finding. The state also argued that Long’s
neighbor was a reliable source of information because the affidavit indicated that the
informant was Long’s neighbor and the neighbor was a “readily-identifiable person,” was
presumably familiar with Long, and “described in great detail that he saw [Long]
masturbating to very specific child pornography * * *.” The state also claimed that the
informant was credible because McGuffin was able to corroborate the informant’s report
to the extent that McGuffin was able to see Long sitting in front of a computer monitor
from McGuffin’s vantage point inside the informant’s house.
{¶ 13} The trial court denied Long’s request for a Franks hearing and his motions
to suppress. The court found that Long was not entitled to a Franks hearing because he
failed to make a substantial preliminary showing that Baumgardner knowingly and
intentionally made false statements in his affidavit for the search warrant, or that
Baumgardner made any false statements with reckless disregard for the truth. Regarding
Baumgardner’s use of a “confidential informant” without providing any information
regarding the informant’s reliability or veracity, the court determined that “[a]lthough the
witness in the search warrant affidavit is errantly referred to as a ‘confidential informant,’
the witness is clearly Long’s neighbor and properly categorized as a concerned citizen
eyewitness.” Thus, the court concluded that Baumgardner properly relied on the
information. Regarding the route McGuffin took to look in Long’s window, the trial
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court found that “[w]hile the explanation of the route taken by Officer McGuffin may not
provide the detail sought by Long, it cannot be said that the affiant knowingly and
intentionally, or with reckless disregard for the truth, made misrepresentations regarding
the route taken.”
{¶ 14} As to the merits of Long’s motions to suppress, the trial court
acknowledged that McGuffin was on the curtilage of Long’s home at the time he saw
Long watching child pornography, but could not say whether McGuffin was on a part of
the driveway that was impliedly open to the public because the court “did not hear
evidence on the subject * * *.” Regardless, the court determined that the good faith
exception to the exclusionary rule would apply to any constitutional violations that might
exist, so the fruits of the search warrant did not need to be suppressed.
{¶ 15} Following the denial of his motions to suppress, Long pleaded no contest to
the charges in both indictments. The trial court found him guilty, and on March 5, 2019,
sentenced him to a total prison term of ten years.
{¶ 16} Long appeals his convictions, raising one assignment of error:
The trial court erred as a matter of law when it denied Mr. Long’s
Motion to Suppress.
II. Law and Analysis
{¶ 17} In his assignment of error, Long argues that the trial court erred by denying
his motions to suppress because (1) the search warrant affidavit relied on a confidential
informant without providing information about the informant’s reliability and veracity,
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(2) the state failed to establish that McGuffin was on an area of Long’s driveway that was
impliedly open to the public, and (3) McGuffin entered the curtilage of Long’s home
without a warrant with the sole purpose of conducting a search.
{¶ 18} In response, the state argues that (1) the information provided by the
“informant”—who was clearly Long’s next door neighbor—supplied the Perrysburg
Municipal Court judge with probable cause to issue the search warrant, (2) McGuffin’s
observations were legal because Long left his blinds open, putting his actions in plain
view, and (3) Long’s curtilage arguments fail for three reasons: (a) Ohio courts have not
applied the rules in Collins v. Virginia, __ U.S. __,138 S.Ct. 1663, 201 L.Ed.2d 9 (2018),
and Florida v. Jardines, 569 U.S. 1, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), as broadly
as Long claims, (b) McGuffin was on Long’s property on legitimate police business (i.e.,
investigating a complaint that Long was masturbating to child pornography) and was in
an area that was implied open to the public where a reasonably respectful citizen may go,
and (c) the area where McGuffin was standing was not part of the curtilage under the test
articulated in United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326(1987).
A. Standard of review.
{¶ 19} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
The trial court acts as the trier of fact. Although we must accept any findings of fact that
are supported by competent, credible evidence, we conduct a de novo review to
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determine whether the facts satisfy the applicable legal standard, and this independent
review is done without deference to the trial court. State v. Codeluppi, 139 Ohio St.3d
165, 2014-Ohio-1574, 10 N.E.3d 691, ¶ 7, citing Burnside at ¶ 8; State v. Jones-Bateman,
6th Dist. Wood Nos. WD-11-074 and WD-11-075, 2013-Ohio-4739, ¶ 9.
{¶ 20} The Fourth Amendment to the United States Constitution and Article I,
Section 14, of the Ohio Constitution prohibit unreasonable searches and seizures of
persons or property. Central to those prohibitions is the requirement that search warrants
issue based on probable cause. State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565,
46 N.E.3d 638, ¶ 34. In this context, “probable cause” means that the evidence presented
in support of issuing the search warrant is sufficient for the magistrate to conclude that
there is a fair probability that evidence of a crime will be found in a particular place. Id.
at ¶ 35.
{¶ 21} A reviewing court does not conduct a de novo review of the magistrate’s
probable-cause determination. State v. George, 45 Ohio St.3d 325, 330, 544 N.E.2d 640(1989). Instead, we must ensure that the magistrate had a substantial basis, considering
the totality of the circumstances, for concluding that probable cause existed. Castagnola
at ¶ 35, citing George at 329, Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76
L.Ed.2d 527 (1983), and Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4
L.Ed.2d 697 (1960). An issuing judge’s probable-cause determination is entitled to
“great deference.” State v. Williams, 173 Ohio App.3d 119, 2007-Ohio-4472, 877 N.E.2d
717, ¶ 13 (6th Dist.), citing George at 330.
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{¶ 22} A judge may issue a search warrant based solely on facts presented by
affidavit or may require an affiant to appear and present oral testimony to supplement an
affidavit. Crim.R. 41(C)(1), (2). If the warrant is based only on information provided by
affidavit, review of the issuing judge’s probable cause determination—both at the trial
and appellate court levels—is limited to the information found within the four corners of
the affidavit.1 Castagnola at ¶ 39 (“[T]he reviewing court is concerned exclusively with
the statements contained within the affidavit itself.” (Internal quotations omitted.)).
B. The “confidential informant” was a citizen informant who was
presumptively credible and reliable and whose tip was sufficient to
provide probable cause for the search warrant.
{¶ 23} We first address Long’s argument regarding the “confidential informant”
who reported Long to the PPD. Long takes issue with the trial court’s finding that the
informant was a concerned citizen, rather than a confidential informant, and argues that
Baumgardner was required to aver to the reliability and veracity of the informant or
independently verify the informant’s report through police work that did not violate
1
A reviewing court may also look outside of the four corners of the affidavit if the
defendant makes a “substantial preliminary showing” that the affidavit contains false
statements that were necessary to the finding of probable cause and that the affiant made
the statements knowingly and intentionally or with reckless disregard for the truth.
Franks, 438 U.S. at 155-156, 98 S.Ct. 2674, 57 L.Ed.2d 667. Although Long raised a
Franks claim in the trial court, on appeal, he does not challenge the trial court’s denial of
his request for a Franks hearing or its conclusion that Long failed to make the requisite
“substantial preliminary showing” that Baumgardner’s use of the term “confidential
informant” and his description of the route the informant and McGuffin took from the
informant’s home to Long’s window were material misrepresentations made knowingly
and intentionally or with reckless disregard for the truth. Accordingly, we will confine
our review to the four corners of the search warrant affidavit.
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Long’s constitutional rights. Based on the totality of the circumstances, we find that the
informant was a citizen informant and that his report to the police was sufficient to
support the issuance of the search warrant.
1. The trial court correctly classified the informant.
{¶ 24} The law generally recognizes three categories of informants: “anonymous
informants” about whom the police know little or nothing, “known informants” who are
part of the criminal world, and “citizen informants” who have witnessed criminal activity.
Maumee v. Weisner, 87 Ohio St.3d 295, 300, 720 N.E.2d 507 (1999). Given that the
classification of an informant is relevant to the informant’s reliability, we must determine
which of these three categories applies to the “confidential informant” at issue in this
case. Courts should, however, avoid performing a “conclusory analysis based solely
upon these categories * * *” and instead must review all information in light of the
totality of the circumstances. Id.{¶ 25} That being said, “[i]nformation coming from a citizen eyewitness is
presumed credible and reliable, and supplies a basis for a finding of probable cause in
compliance with Gates.” State v. Garner, 74 Ohio St.3d 49, 63, 656 N.E.2d 623 (1995).
So “questions of veracity and reliability are essentially obviated in cases where the
information tendered in support of a search warrant derives from a crime victim or citizen
eyewitness.” State v. McCrory, 6th Dist. Wood Nos. WD-09-074 and WD-09-090, 2011-
Ohio-546, ¶ 21. The Supreme Court of Ohio has reasoned that requiring the police to
provide evidence of past instances of the reliability of citizens—who generally provide
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police with information only once—would “create an undue burden on the issuance of
search warrants * * *.” Garner at 63.
{¶ 26} In contrast, information that comes from a known informant—a person
who is part of the “criminal milieu”—is inherently more suspect. (Internal quotations
omitted.) Weisner at 300. Consequently, a probable-cause finding based on a known
informant’s tip requires that the affiant either attest to the informant’s reliability, veracity,
and basis of knowledge or corroborate the informant’s tip through independent police
work. State v. Nunez, 180 Ohio App.3d 189, 2008-Ohio-6806, 904 N.E.2d 924, ¶ 19-20
(6th Dist.). That is, a known informant’s word cannot be the sole basis for a finding of
probable cause.
{¶ 27} Similarly, information from an anonymous informant is considered
“comparatively unreliable” and any information from an anonymous source generally
requires independent police corroboration in order to support a probable-cause finding.
Weisner at 300, citing Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d
301 (1990).
{¶ 28} Here, the search warrant for Long’s home was granted solely on
Baumgardner’s affidavit, so our probable-cause review is limited to the information in
the affidavit. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638, at ¶ 39.
Based on that information, Long and the state dispute whether the “confidential
informant” who reported Long’s conduct to the PPD is properly classified as a citizen
informant—whose report to the police is presumptively credible and reliable—or as a
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known or anonymous informant—rendering his report more suspect and requiring either
attestation to his veracity and reliability or corroboration through independent police
work.
{¶ 29} At the outset, we note that, regardless of what Baumgardner called the
person from whom the PPD received its information, the label used is not dispositive of
whether the search warrant affidavit demonstrated probable cause to search Long’s
house. See Weisner, 87 Ohio St.3d at 300, 720 N.E.2d 507 (“[T]he United States
Supreme Court discourages conclusory analysis based solely upon [the] categories * * *”
of informants.). Instead, we look at the totality of the circumstances. Id. Moreover,
“[t]he validity of a search-warrant affidavit should not turn on the identifier that an
officer selects when trying to protect a person’s identity.” State v. Dibble, 133 Ohio
St.3d 451, 2012-Ohio-4630, 979 N.E.2d 247, ¶ 22.
{¶ 30} However, despite the state’s claim that there is “no mystery who the
concerned citizen was in this case,” the affidavit is not that clear. In an apparent effort to
protect the person who reported criminal conduct, Baumgardner did not say that the
informant was Long’s neighbor, provide any identifying information for the “confidential
informant,” or even indicate that the informant gave the PPD identifying information.
Although at first glance these facts seem to support a finding that the informant was
anonymous, courts have generally required very little identifying information to remove
an informant’s anonymity, so long as the person’s “identity was ascertainable.” See
Weisner at 301 (noting that, in the context of reasonable suspicion for a traffic stop,
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“[c]ourts have been lenient in their assessment of the type and amount of information
needed to identify a particular informant,” for example, requiring only a tipster’s
occupation or some face-to-face contact between the tipster and a police officer). Here,
we know that McGuffin went to the informant’s home and entered the informant’s house,
and that Baumgardner separately “made contact with the confidential informant, and he
came in to speak with [Baumgardner] regarding this report.” We therefore know that the
informant had face-to-face contact with both McGuffin and Baumgardner, and we
presume that the informant provided the PPD with his name and contact information. At
the very least, it is clear from the affidavit that the informant’s identity was readily
ascertainable.
{¶ 31} Further, probable cause for a search warrant can be based on reasonable
inferences drawn from the information in the affidavit. Castagnola, 145 Ohio St.3d 1,
2015-Ohio-1565, 46 N.E.3d 638, at ¶ 41, citing Gates, 462 U.S. at 240, 103 S.Ct. 2317,
76 L.Ed.2d 527, State v. Hobbs, 133 Ohio St.3d 43, 2012-Ohio-3886, 975 N.E.2d 965,
¶ 10, and State v. Jordan, 11th Dist. Lake No. 97-L-211, 1998 WL 684231, *3 (Sept. 25,
1998) (O’Neill, J., dissenting). The information in Baumgardner’s affidavit allowed the
issuing judge to reasonably infer that the person providing the tip was Long’s neighbor.
First, the informant knew Long’s identity, that he lived at 515 East Second Street, and
that he lived alone. Although it is not impossible for a stranger to learn these details
about someone, it is reasonable to infer that neighbors know these details about each
other. Second, the informant was able to view Long’s computer monitor from inside the
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informant’s home. For this to be true, common sense dictates that the informant’s home
was necessarily near Long’s home. Finally, based on Baumgardner’s description of the
path the informant took to lead McGuffin to Long’s window—going out the side of the
informant’s house, around the back, and then up Long’s driveway—it is reasonable to
infer that the homes were close together. Considered together, we find that this
information is sufficient to remove the informant in this case from the category of
“anonymous informant.”
{¶ 32} For these same reasons, we find that the informant is also not a “known
informant”—i.e., someone in the criminal world whose tip required Baumgardner to aver
to the informant’s reliability and veracity, or to independently corroborate the tip.
Indeed, the only argument Long makes regarding why we should classify the informant
as a “known informant” is the fact that Baumgardner repeatedly called the informant a
“confidential informant” in the affidavit. But the label Baumgardner used is not
dispositive. Weisner, 87 Ohio St.3d at 300, 720 N.E.2d 507. Moreover, we conduct a
commonsense review of a search warrant affidavit—not a hypertechnical one. Dibble,
133 Ohio St.3d 451, 2012-Ohio-4630, 979 N.E.2d 247, at ¶ 24, citing United States v.
Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). And an affiant’s use
of the wrong label for the person who provides information to police is not sufficient,
standing alone, to call into question the veracity of a citizen eyewitness’s tip. See
McCrory, 6th Dist. Wood Nos. WD-09-074 and WD-09-090, 2011-Ohio-546, at ¶ 26 (the
detective failing to include the complainant-victim’s name in the search warrant affidavit
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did not make the complaint-victim a “confidential informant” to whose veracity and
reliability the detective was required to attest).
{¶ 33} Here, Baumgardner merely used the wrong label for the informant. There
is no evidence that the person who reported Long to the police is someone from the
criminal world whose information should be more carefully scrutinized. And finding that
the informant was a known informant, based solely on Baumgardner’s use of the phrase
“confidential informant,” would require us to interpret the affidavit in the hypertechnical
manner that the Supreme Courts of Ohio and the United States have each eschewed.
{¶ 34} In sum, although Baumgardner did not specifically name the informant, the
information he provided in the affidavit allowed the Perrysburg Municipal Court judge to
reasonably infer that the PPD received its information from Long’s neighbor. Because
the neighbor’s identity is ascertainable from the information in the affidavit, we conclude
that the informant is not an anonymous informant whose tip requires independent
corroboration. Further, the fact that Baumgardner called the informant a “confidential
informant”—alone—is insufficient to show that the person from whom the PPD received
its information is a known informant who comes from the criminal world and whose
reliability and veracity Baumgardner was required to vouch for or whose tip the PPD was
required to verify through independent police work.
{¶ 35} Instead, the totality of the circumstances shows that the informant was a
citizen informant who witnessed Long engaging in criminal activity, which he reported to
the PPD. As a citizen informant, the neighbor is presumed to be credible and reliable,
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and Baumgardner was not required to aver to the neighbor’s veracity or reliability or to
independently verify the information the neighbor reported to the PPD.
2. The informant’s report to the PPD was sufficient to support probable cause.
{¶ 36} Based on our determination that the person who reported Long to the PPD
was, in fact, a concerned citizen whose report was reliable, we further find that the
totality of the circumstances shows that the municipal court judge had a substantial basis
for concluding that probable cause to search Long’s home existed.
{¶ 37} As noted above, “questions of veracity and reliability are essentially
obviated * * *” when the information about a crime comes from a citizen eyewitness,
McCrory, 6th Dist. Wood Nos. WD-09-074 and WD-09-090, 2011-Ohio-546, at ¶ 21,
and an eyewitness’s account “supplies a basis for a finding of probable cause in
compliance with Gates.” Garner, 74 Ohio St.3d at 63, 656 N.E.2d 623. In our view, the
information from Long’s neighbor—i.e., a report to the PPD that the neighbor saw Long
(who appeared to be masturbating) sitting in front of a computer screen watching what
appeared to be videos of girls who were no older than ten engaged in sexual acts—
provided the municipal court judge with probable cause to issue the search warrant. That
is, the neighbor’s presumptively reliable report was more than sufficient to support a
finding that there was a fair probability that evidence of a crime would be found in
Long’s home. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638, at ¶ 35.
On this basis alone, we find that the trial court did not err in denying Long’s motions to
suppress.
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C. We need not address the curtilage issues.
{¶ 38} Long’s other arguments center on whether McGuffin was lawfully on the
curtilage of his property at the time McGuffin observed him viewing a video of children
engaged in sex acts. We need not address these arguments, however, because the
information provided by Long’s neighbor was sufficient to support the municipal court
judge’s finding of probable cause to search Long’s home. That is, even if we assume that
McGuffin’s actions were unconstitutional and we excise all information in
Baumgardner’s affidavit that came from McGuffin’s own observations while standing on
Long’s driveway, the neighbor’s information nonetheless provided probable cause for the
search. See State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 17,
quoting United States v. Karo, 468 U.S. 705, 719, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984)
(when an affidavit for a search warrant contains information that the police obtained
improperly or unconstitutionally, courts will uphold the warrant if “after excising tainted
information from a supporting affidavit, ‘[]sufficient untainted evidence was presented in
the warrant affidavit to establish probable cause * * *.’”).
{¶ 39} Long’s assignment of error is not well-taken.
III. Conclusion
{¶ 40} Based on the foregoing, the March 8, 2019 judgments of the Wood County
Court of Common Pleas are affirmed. Long is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgments affirmed.
18.
State v. Long
C.A. Nos. WD-19-021
WD-19-022
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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