State v. Connin , 2020 Ohio 6867 ( 2020 )

[Cite as State v. Connin, 2020-Ohio-6867.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
FULTON COUNTY
State of Ohio Court of Appeals No. F-20-005
Appellee Trial Court No. 19CR000104
v.
David A. Connin DECISION AND JUDGMENT
Appellant Decided: December 23, 2020
*****
Scott A. Haselman, Fulton County Prosecuting Attorney,
for appellee.
Karin L. Coble, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, David Connin, appeals the May 14, 2020 judgment of
the Fulton County Court of Common Pleas which, following the denial of appellant’s
motion to suppress evidence seized pursuant to a search warrant and subsequent no
contest plea, sentenced him to eight months of incarceration for possession of cocaine.
{¶ 2} On April 15, 2019, a search warrant was issued; it was executed on April 18,
2019, at appellant’s residence in Delta, Fulton County, Ohio. Police recovered several
items relating to the use and distribution of illegal substances including a green
“vegetative” substance in a plastic baggie, marijuana pipes, a mirror with residue, a tar
substance in the freezer, multiple Ziploc plastic baggies, a bill counting machine, a digital
scale, over $300 in cash, and multiple cell phones. Following the search, appellant was
indicted on six drug-related offenses: four, fifth-degree felonies and two, fourth-degree
misdemeanors. Appellant entered a not guilty plea to the charges.
{¶ 3} On January 31, 2020, appellant filed a motion to suppress all the evidence
seized during the search arguing that the probable cause affidavit relied upon by the court
in issuing the search warrant was deficient. The parties agreed that the motion would be
determined on the four corners of the search warrant.
{¶ 4} On March 12, 2020, the trial court denied the motion to suppress. The court
concluded that the affiant, Detective Brown, provided sufficient information, from a
“variety of sources,” that contraband would be located at appellant’s residence.
Alternatively, the court noted that the executing office’s reliance on the sufficiency of the
warrant was objectively reasonable.
{¶ 5} Thereafter, appellant entered a no contest plea to Count 3, possession of
cocaine, and the remaining charges were dismissed. Appellant was sentenced to eight
months of imprisonment and ordered to pay the costs of prosecution and court-appointed
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counsel. This appeal followed with appellant raising two assignments of error for our
consideration:
Assignment of Error One: The trial court erred in denying
appellant’s motion to suppress the fruits of a home search warrant where
the affidavit failed to establish probable cause, in violation of the Fourth
Amendment to the U.S. Constitution and Section 14, Article I of the Ohio
Constitution.
Assignment of Error Two: The imposition of costs is contrary to
law.
{¶ 6} Appellant’s first assignment of error challenges the trial court’s denial of his
motion to suppress. Review of a trial court’s denial of a motion to suppress presents
mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-
5372, 797 N.E.2d 71, ¶ 8. “When considering a motion to suppress, the trial court
assumes the role of trier of fact and is therefore in the best position to resolve factual
questions and evaluate the credibility of witnesses.” Id., citing State v. Mills, 62 Ohio
St.3d 357, 366, 582 N.E.2d 972 (1992). An appellate court defers to a trial court’s factual
findings made with respect to its ruling on a motion to suppress where the findings are
supported by competent, credible evidence. Id.; State v. Brooks, 75 Ohio St.3d 148, 154,
661 N.E.2d 1030 (1996). “[T]he appellate court must then independently determine,
without deference to the conclusion of the trial court, whether the facts satisfy the
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applicable legal standard.” Id., citing State v. McNamara, 124 Ohio App.3d 706, 707
N.E.2d 539 (4th Dist.1997).
{¶ 7} Appellant argues that the probable cause affidavit’s first three alleged
instances involving drug trafficking were too remote in time, January and February 2019,
and undated, to support probable cause. As to the fourth instance, appellant contends that
it lacks the reliability necessary to support probable cause. Conversely, the state argues
that looking at the instances as a whole demonstrates the existence of probable cause.
{¶ 8} The April 15, 2019 probable cause affidavit was authored by Archbold
Police Detective Jerry Brown and provides, in relevant part:
This officer was told by Chief Hartstock of the Delta Police
Department that David Connin is possibly selling Marijuana out of his
residence. The Delta Police Department received a complaint from a
neighbor about a lot of traffic visiting the residence for minutes at a time.
It’s this officer’s experience this can be an indicator of drug trafficking.
{¶ 9} The affiant then indicated that he reviewed two reports from the Delta Police
Department
[t]he first being a traffic stop on January 25, 2019. The traffic stop
involved an individual that this Officer has prior knowledge of being tied to
drug trafficking in the past. During the traffic stop the individual was
discovered to be in possession of Marijuana. The report stated that the
suspect told the officer that the Marijuana was a gift from David Connin.
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The report also states that the officer observed the suspect vehicle leaving
Connin’s residence at 108 Jefferson St.
I read a second report by the Delta Police Department involving
another traffic stop on February 9, 2019. According to the report David
Connin was the passenger in a vehicle that was stopped by Delta Police
Department. Marijuana was found inside the vehicle. Mr. Connin was
taken to CCNO on an unrelated warrant.
{¶ 10} The final instance supporting the search warrant provided:
On April 12, 2019 I was called to the Delta Police Department.
Officer Moreno from the Delta Police Department stopped a vehicle. The
driver was found to be in possession of suspected Marijuana and Cocaine.
The driver identified as Chad M[.] agreed to speak with me. I read Chad
his Miranda Rights. Chad verbally stated that he understood them. I asked
him some basic questions about his work and living arrangement. I then
asked him where he went after work and he advised that he went to David
Connin’s. He stated that he was at Connin’s for approximately 15 minutes.
I then asked if that is where he got the Cocaine and he advised that he did.
Chad advised that he typically stops once a week and buy[s] Cocaine for
the week and occasionally buys what he referred to as Carts. He elaborated
that Carts means Marijuana Vape Pen cartridges. Chad advised that he can
typically buy either of the drugs from David any day of the week.
5.
{¶ 11} Appellant discounts the neighbor’s complaint and the January and February
2019 instances as being too vague and remote in time. As to the April 12, 2019 instance,
appellant asserts that the affidavit fails to attest to the arrestee, Chad’s reliability or the
reliability of the information. Appellant further asserts that the good faith exception does
not apply given the facts of the case.
{¶ 12} The state counters that taking the information as a whole, including the
identified informant whose information regarding appellant’s criminal activity was based
upon his own participation in the activity, established probable cause. Alternatively, if
probable cause was lacking, the state argues for the application of the good faith
exception in that the officer executing the search warrant acted reasonably.
{¶ 13} Central to the constitutional prohibition of unreasonable searches and
seizures is the requirement that search warrants issue based upon probable cause. State v.
Long, 2020-Ohio-4090, 157 N.E.3d 362, ¶ 20 (6th Dist.). To determine whether a
sufficient basis exists to find probable cause for the issuance of a search warrant requires
consideration of the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 230,
103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
Under the totality-of-the-circumstances test, “[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 him,
including the ‘veracity’ and ‘basis of knowledge’ of persons supplying
hearsay information, there is a fair probability that contraband or evidence
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of a crime will be found in a particular place. And the duty of a reviewing
court is simply to ensure that the magistrate had a ‘substantial basis for
* * * conclud[ing]’ that probable cause existed.” Jones v. United States,
362 U.S. at 271[, 80 S.Ct. 725, 4 L.Ed.2d 697].* * *”
State v. George, 45 Ohio St.3d 325, 329, 544 N.E.2d 640 (1989), quoting Gates at 238-
239.
{¶ 14} When a search warrant is issued, the determination by the issuing judge or
magistrate that there was probable cause for the search is not subject to de novo review
by appellate courts. George at paragraph two of the syllabus, following Gates at 236.
“Rather, the duty of a reviewing court is simply to ensure that the magistrate had a
substantial basis for concluding that probable cause existed.” Id. “Even when a
magistrate’s determination of probable cause may be doubtful or marginal, the appellate
courts should still give it ‘great deference.’ [State v. George at 330, 544 N.E.2d 640.]”
State v. Williams, 173 Ohio App.3d 119, 2007-Ohio-4472, 877 N.E.2d 717, ¶ 13 (6th
Dist.).
{¶ 15} Even under the totality-of-the-circumstances standard, an affidavit in
support of a search warrant must contain “the presence of some indicia of veracity of the
informant or the reliability of the information material to the probability of evidence of
crime.” Williams at ¶ 18. In Williams, relied upon by appellant, the probable cause
affidavit provided that the defendant’s residence had been searched two years prior and
police had seized “massive” quantities of cocaine. Id. at ¶ 2. It listed four confidential
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informants who stated that appellant had a large amount of pure cocaine at his residence
(which was identified) and that appellant is married to a teacher and drives a green SUV
with chrome rims. Id.
{¶ 16} Finding that the affidavit failed to establish probable cause we concluded
that the information regarding appellant’s residence and vehicle did not provide
verification of drug activity. Id. at ¶ 15. Likewise, we found that appellant’s drug
activity from two years prior did not establish current drug activity. Id. at ¶ 16. As to the
information provided by the confidential informants, we stated: “The affidavit contained
no statements providing indicia of either the veracity of the informants or the basis of
their knowledge. We have no idea how the officer confirmed the drug activity or why the
sources have been proven reliable.” Id. at ¶ 17.
{¶ 17} In the present case, unlike Williams, the informant in the April 2019
instance was identified in the affidavit. The informant’s basis of knowledge that
appellant was presently involved in drug activity was his statement that he had just
purchased the drugs, found on his person, from him. Appellant contends that a statement
from a “freshly caught” arrestee, without more, does not demonstrate the veracity of the
informant or the reliability of the information.
{¶ 18} This court had reviewed the three common classifications of informants:
a citizen informant, who has witnessed criminal activity and is presumed credible; a
known informant, who is generally part of the “criminal milieu” and the affiant must
attest to the informant’s veracity, reliability, or basis of knowledge or must independently
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corroborate the information; and an anonymous informant, generally considered
unreliable and requires independent police corroboration. Long, 2020-Ohio-4090, 157
N.E.3d 362, at ¶ 24-27.
{¶ 19} Less common is the identified or first-time informant who implicates
another while admitting his own criminal activity. The admission of the criminal activity
acts to bolster the informant’s credibility as a statement against penal interest. See State
v. Mendoza, 2019-Ohio-3382, 142 N.E.3d 148 (10th Dist.); State v. Oloff, 2d Dist.
Greene No. 2012-CA-34, 2012-Ohio-6048, ¶ 20.
{¶ 20} The fact that Chad was an identified informant and that his statements
acted as an admission of his own criminal activity bolstered his credibility. This when
viewed collectively with the other three instances of drug activity set forth in the
affidavit, provides a sufficient basis to support the issuance of a search warrant.
{¶ 21} Even if we were to assume that the affidavit was deficient, such a finding
does not necessitate the exclusion of the evidence seized. Under the good-faith
exception, evidence seized during a search conducted pursuant to a warrant that is
unsupported by probable cause will not be excluded if the executing officers acted
reasonably in relying on the warrant. State v. Wilmoth, 22 Ohio St.3d 251, 490 N.E.2d
1236 (1986), paragraphs one and two of the syllabus, following United States v. Leon,
468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
The Leon court explained, however, that suppression would still be
appropriate in circumstances when (1) the supporting affidavit contained
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information the affiant knew to be false or would have known to be false
but for reckless disregard of the truth, (2) the issuing magistrate wholly
abandoned his 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 is so facially deficient
in terms of particularity that the executing officers could not reasonably
presume it to be valid. Leon at 923, 104 S.Ct. 3405, quoting Brown v.
Illinois, 422 U.S. 590, 610-611, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)
(Powell, J., concurring in part); State v. George, 45 Ohio St.3d 325, 331,
544 N.E.2d 640 (1989).
State v. Dibble, 159 Ohio St.3d 322, 2020-Ohio-546, 150 N.E.3d 912, ¶ 9.
{¶ 22} Appellant, again relying on Williams, argues that the good-faith exception
does not apply because there was no corroborative evidence demonstrating drug activity
and no factual basis for the claimed reliability of the informants. Unlike Williams, in this
case the informant was named in the affidavit and had implicated himself in the illegal
activity at issue. Other instances of drug activity involving appellant were also listed.
Further, as set forth above, the Williams affidavit failed to explain the basis of knowledge
of the confidential informants and the only confirmed drug activity at the defendant’s
home was dated two years prior. Williams, 173 Ohio App.3d 119, 2007-Ohio-4472, 877
N.E.2d 717, at ¶ 16-17.
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{¶ 23} Reading the affidavit as a whole, just as the judge found sufficient probable
cause for the issuance of the search warrant, the executing officer reasonably relied on
the warrant in searching appellant’s home. Further, in the affidavit there was no evidence
of a false statement and the items to be seized were set forth with sufficient detail.
Dibble, 159 Ohio St.3d 322, 2020-Ohio-546, 150 N.E.3d 912, at ¶ 9. Appellant’s first
assignment of error is not well-taken.
{¶ 24} Appellant’s second assignment of error challenges the imposition of court-
appointed counsel costs without a finding of appellant’s ability to pay. On appeal we
review whether the imposition of costs was contrary to law. State v. Tucker, 6th Dist.
Wood No. WD-16-063, 2018-Ohio-1869, ¶ 36.
{¶ 25} At the May 8, 2020 sentencing hearing the court stated: “The Defendant is
advised that he has a right – well, he is not going to be required to pay any costs in this
matter – well, he will be required to pay costs.” The sentencing judgment entry provided:
“Defendant is ordered to pay all prosecution costs and court-appointed counsel costs.”
{¶ 26} This court has repeatedly held that where a court imposes the discretionary
costs of supervision, confinement, or assigned counsel, “it must affirmatively find that
the defendant has, or reasonably may be expected to have, the ability to pay.” State v.
Brown, 6th Dist. Lucas No. L-18-1140. 2020-Ohio-1650, ¶ 37, citing State v. Gray, 6th
Dist. No. L-15-1072, 2015-Ohio-5021, ¶ 21; State v. Wymer, 6th Dist. Lucas No.
L-18-1108, 2019-Ohio-1563, ¶ 14.
11.
{¶ 27} The parties do not dispute and we agree that the court failed to find that
appellant had the ability to pay the costs of appointed counsel. Appellant’s second
assignment of error is well-taken.
{¶ 28} Based on the foregoing, we find that the trial court did not err in denying
appellant’s motion to suppress. The court did err in imposing the costs of assigned
counsel. Accordingly, the May 14, 2020 judgment of the Fulton County Court of
Common Plea is affirmed in part, and reversed and vacated as to the court-appointed
counsel costs. Appellant and the state are ordered to share the costs of this appeal under
App.R. 24.
Judgment affirmed, in part,
and reversed, in part.
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
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, 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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