State v. Morris , 2014 Ohio 1177 ( 2014 )

[Cite as State v. Morris, 2014-Ohio-1177.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 13 MA 93
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
CLARENCE MORRIS, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 12 CR 119.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul J. Gains
Prosecuting Attorney
Attorney Ralph M. Rivera
Assistant Prosecuting Attorney
21 W. Boardman St., 6th Floor
Youngstown, OH 44503
For Defendant-Appellant: Attorney Damian Billak
Creekside Professional Centre
Building F, Suite 100
6715 Tippecanoe Road
Canfield, OH 44406
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: March 20, 2014
[Cite as State v. Morris, 2014-Ohio-1177.]
DeGenaro, P.J.
{¶1} Defendant-Appellant, Clarence Morris, appeals the May 21, 2013 judgment
of the Mahoning County Court of Common Pleas convicting him of three counts of drug
possession and sentencing him accordingly. On appeal, Morris argues that the trial court
erred by denying his motion to suppress because the affidavit upon which the search
warrant was based contained information insufficient to establish probable cause that
there was ongoing drug activity occurring at Morris' residence.
{¶2} Morris' assignment of error is meritless. The affidavit in support of the
search warrant sets forth probable cause for the search; namely, that officers had
conducted two controlled buys of heroin from Morris using a confidential informant during
the two weeks preceding the issuance of the search warrant. For both of the controlled
buys, officers observed Morris leaving his residence, followed him to a location for the
controlled buy and then followed him back to his residence. Accordingly, the judgment of
the trial court is affirmed.
Facts and Procedural History
{¶3} On November 29, 2011, the Mahoning County Court of Common Pleas
issued a search warrant for Morris' residence in Youngstown. The search warrant was
supported by the affidavit of Laurence McLaughlin, a Mahoning County Sherriff's Deputy
assigned to the Mahoning Valley Law Enforcement Task Force. Among other things,
McLaughlin averred that he, along with other task force members, conducted two
controlled drug buys from Morris, using a confidential informant, during the weeks of
November 14, 2011 and November 28, 2011. Each time, the informant, who was first
searched for contraband with negative results, fitted with electronic monitoring equipment,
and provided recorded funds, purchased one-half gram of heroin from Morris. After the
first controlled buy, officers followed Morris back to his residence. Prior to the second
buy, officers set up surveillance at Morris' residence. Morris was observed leaving his
residence and followed to a location for the controlled buy and then followed back to his
residence. The heroin purchased during the buys was field-tested and subsequently lab-
tested with positive results. Based on those controlled buys, along with his extensive
-2-
training and experience, McLaughlin averred he had reasonable cause to believe that the
Morris' residence was being used to store and/or traffic illegal drugs.
{¶4} That same day, law enforcement officers executed the search warrant,
which yielded numerous controlled substances and other contraband. As a result of the
search and seizure, Morris was charged by secret indictment on February 2, 2012, with
four counts: (1) having weapons while under disability (R.C. 2923.13(A)(3)), a third-
degree felony; (2) possession of heroin (R.C. 2925.11(A)(C)(6)(b)), a fourth-degree
felony; (3) possession of cocaine (R.C. 2925.11(A)(C)(4)(e)), a first-degree felony; and (4)
possession of cocaine (R.C. 2925.11(A)(C)(4)(a)), a fifth-degree felony. The indictment
also included a forfeiture specification pursuant to R.C. 2981, directed at certain sums of
money, vehicles, weapons, and electronics. Morris was arrested, pled not guilty, retained
counsel, waived his speedy trial rights and posted bond.
{¶5} On August 3, 2012, Morris filed a motion to suppress all evidence obtained
from the search, claiming that the affidavit provided in support of the search warrant was
devoid of reliable information and therefore failed to demonstrate probable cause. The
search warrant and accompanying affidavit were attached to the motion to suppress. The
State filed a brief in opposition. The trial court, after noting that the parties had agreed to
submit the matter for decision without an oral hearing, denied the motion.
{¶6} On March 1, 2013, the trial court sustained the State's motion to amend
count three of the indictment from first-degree felony cocaine possession to second-
degree felony cocaine possession. (R.C. 2925.11(A)(C)(4)(d)). That same day, Morris
entered a no contest plea to the charges in the indictment, as amended. Pursuant to the
written plea agreement, the State agreed to recommend a four-year aggregate prison
sentence and forfeiture of all items in the specification except for one vehicle to be
returned to Morris' grandmother.
{¶7} On July 1, 2013, the trial court issued its sentencing entry imposing an
aggregate prison term of 3 years: 36 months on count one; 18 months on count two; 3
years on count three; and 12 months on count four, all to run concurrently with one
another, along with a 3-year mandatory term of post-release control.
-3-
Validity of the Search Warrant
{¶8} In his sole assignment of error, Morris asserts:
{¶9} "The trial court erred when it overruled Appellant Clarence L. Morris's
motion to suppress in violation of the Fourth Amendment to the United States Constitution
and Article I, Section 14 of the Ohio Constitution where the search warrant was invalid
since the main source of information affidavit upon which it was based [sic] contained
insufficient information which failed to establish probable cause to believe there was
ongoing drug activity occurring at the place to be searched."
{¶10} R.C. 2933.22(A) provides, "[a] warrant of search or seizure shall issue only
upon probable cause, supported by oath or affirmation particularly describing the place to
be searched and the property and things to be seized." R.C. 2933.23 goes on to state:
A search warrant shall not be issued until there is filed with the judge
or magistrate an affidavit that particularly describes the place to be
searched, names or describes the person to be searched, and names or
describes the property to be searched for and seized; that states
substantially the offense in relation to the property and that the affiant
believes and has good cause to believe that the property is concealed at
the place or on the person; and that states the facts upon which the
affiant's belief is based. * * * If the judge or magistrate is satisfied that
grounds for the issuance of the warrant exist or that there is probable
cause to believe that they exist, he shall issue the warrant, identifying in it
the property and naming or describing the person or place to be searched.
R.C. 2933.23; see also Crim. R. 41(C) (describing issuance and contents of search
warrants.)
{¶11} To determine whether an affidavit submitted in support of a search warrant
contains sufficient probable cause, the judge or magistrate makes "a practical, common-
sense decision" whether, given all the circumstances set forth in the affidavit, including
the "veracity" and "basis of knowledge" of the persons supplying hearsay information,
-4-
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, 544 N.E.2d 640 (1989), at
paragraph one of the syllabus (Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317,
76 L.Ed.2d 527 [1983] followed.) In addition, an affidavit in support of a search warrant
must present timely information and include facts so closely related to the time of issuing
the warrant as to justify a finding of probable cause at that time. State v. Hollis, 98 Ohio
App.3d 549, 554, 649 N.E.2d 11 (1991), citing State v. Jones, 72 Ohio App.3d 522, 526,
595 N.E.2d 485 (1991).
{¶12} When reviewing the sufficiency of probable cause in an affidavit submitted
in support of a search warrant, neither the trial court nor the appellate court should
substitute its judgment for the magistrate's judgment. Id. at paragraph two of the
syllabus. Instead, "the duty of a reviewing court is simply to ensure that the magistrate
had a substantial basis for concluding that probable cause existed." Id. Reviewing courts
should accord great deference to the magistrate's probable cause determination, and
doubtful or marginal cases should be resolved in favor of upholding the warrant. Id.{¶13} Morris first contends that the information contained in the affidavit is "bare
bones" or "boilerplate" in nature. The affidavit in this case provides specific and timely
facts closely related to the timing of the warrant so as to justify a finding of probable
cause that illegal drug activity, i.e., trafficking or possession, was taking place at Morris'
residence.
{¶14} Deputy McLaughlin averred that he, along with other task force members,
conducted two controlled drug buys from Morris two weeks apart; the second transaction
taking place the day before the search warrant was issued. Each time, the confidential
informant was searched, fitted with electronic monitoring equipment, provided recorded
funds, and purchased one-half gram of heroin from Morris. After the first buy, officers
followed Morris back to his residence. Prior to the second buy, officers set up surveillance
at Morris' residence. Morris was observed leaving his residence, and then followed to a
location for the controlled buy and back to his residence. The heroin was field and lab-
tested with positive results. Based upon those controlled buys, along with his extensive
-5-
training and experience, McLaughlin averred he had reasonable cause to believe that the
Morris' residence was being used to store and/or traffic illegal drugs.
{¶15} Morris further complains that the affidavit fails to provide evidence that law
enforcement corroborated information provided to them by the informant. However, it is
apparent from the affidavit any information provided initially to the task force by the
informant was corroborated by the controlled buys which were observed by task force
members from the time Morris left his residence, made the sale and then returned to his
residence.
{¶16} In sum, there was probable cause to issue the search warrant, and Morris'
sole assignment of error is meritless. Accordingly, the judgment of the trial court is
affirmed.
Donofrio, J., concurs.
Waite, J., concurs.