State v. Stonitsch , 2021 Ohio 2953 ( 2021 )

[Cite as State v. Stonitsch, 2021-Ohio-2953.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-200174
TRIAL NO. B-1803702-A
Plaintiff-Appellee, :
: O P I N I O N.
VS.
:
JACOB STONITSCH, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed, Convictions Vacated, and Cause Remanded
Date of Judgment Entry on Appeal: August 27, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Keith Sauter,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Greg A. Cohen for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} This is a companion case to State v. Martin, 1st Dist. Hamilton No. C-
200067, 2021-Ohio-2599, in which we reversed the trial court’s judgment overruling
the defendant’s motion to suppress. Appellant Jacob Stonitsch was a co-defendant
with Abbey Martin, and the search in Martin is the same search at issue here. Given
the indistinguishable facts, we adhere to our recent decision in Martin and reach an
identical result today. We hold application of the good faith exception to be
erroneous on these facts, reverse the trial court’s judgment overruling the
defendant’s motion to suppress, and remand for the granting of Mr. Stonitsch’s
suppression motion.
I.
{¶2} The facts set forth in State v. Martin are the same at hand in this case,
and we presume familiarity with that opinion. We provide a brief summary here for
convenience.
{¶3} Between September 2015 and January 2017, Butler County police
investigated Mr. Stonitsch for potential drug trafficking in West Chester, Ohio. After
15 months of thorough and continuous investigation, police submitted an affidavit
for a warrant to search his residence (shared with his girlfriend, Ms. Martin). This
affidavit recounted the wide variety of investigative techniques employed by Butler
County officers to gather their evidence and establish probable cause, including use
of confidential informants, interviews of known associates, anonymous tips, cell
phone pings, and a GPS tracker placed on Mr. Stonitsch’s vehicle. A search of the
residence resulted in drug charges, and Mr. Stonitsch eventually pled guilty to
attempted trafficking of marijuana (a first-degree misdemeanor).
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{¶4} Several months after the conclusion of the Butler County case, in
March 2018, a Butler County officer involved with the investigation notified a
Hamilton County detective that Mr. Stonitsch and Ms. Martin had moved to Colerain
Township. The Butler County officer provided his Hamilton County counterpart
with a copy of the affidavit that he used to procure the search warrant. But rather
than launch a new probe of possible trafficking in Colerain Township, the Hamilton
County detective failed to undertake a similar investigation. No surveillance of the
couple’s new home occurred, no tips or information implicating either individual in
drug activity materialized, and no efforts were made to track Mr. Stonitsch’s phone
or to monitor the whereabouts of his vehicle. Then, on June 19, 2018, the Hamilton
County detective executed a trash pull from Mr. Stonitsch and Ms. Martin’s
residence. The trash pull revealed loose marijuana leaves, a marijuana cigar,
“multiple” empty vacuum-sealed plastic bags, and two cut straws—all evidence that
the detective later conceded comported with personal drug use.
{¶5} Armed with this trash-pull evidence, the Hamilton County detective
composed a 34-paragraph affidavit for a warrant to search the couple’s home. Out of
these 34 paragraphs, however, 28 were copy-pasted word-for-word from the old
Butler County affidavit. At the time the Hamilton County detective submitted this
affidavit, the Butler County information was from 17 to 33 months old. Nonetheless,
a warrant was issued, which officers executed at the home on June 26, 2018. The
state subsequently charged Mr. Stonitsch and Ms. Martin with trafficking in hashish,
possession of hashish, trafficking in marijuana, and possession of marijuana. Both
co-defendants filed motions to suppress, which the trial court denied on the basis of
the good faith exception to the exclusionary rule after concluding that probable cause
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was wanting. Mr. Stonitsch pled no contest and now appeals, challenging the trial
court’s denial of his motion to suppress in a single assignment of error.
II.
{¶6} This appeal raises identical issues to that of Mr. Stonitsch’s co-
defendant, Ms. Martin. In her appeal, captioned State v. Martin, we explained that
the 17-to-33-month-old Butler County information fell “far beyond the bounds
established by other Ohio courts” for stale evidence. Martin, 1st Dist. Hamilton No.
C-200067, 2021-Ohio-2599, at ¶ 15. See, e.g., State v. Gales, 143 Ohio App.3d 55,
62, 757 N.E.2d 390 (8th Dist.2001) (“Given the perishable nature of the contraband
at issue, there is no reason to believe that one might find heroin at the address three
months after this alleged admission and single, isolated surveillance[,] * * * probable
cause has grown stale.”). Although the old evidence might have been “refreshed”
(i.e., rendered not stale) by present, corroborative evidence of drug trafficking
behavior, we deemed the “slim contents of the trash pull” insufficient to provide
corroboration here. Martin at ¶ 16. Having determined that the 28 paragraphs of
Butler County detail presented stale information—and thus never should have been
included in the affidavit in the first place—we removed that evidence from our
consideration and evaluated “probable cause based on what remain[ed]: the trash
pull.” Id. at ¶ 18, citing State v. Weimer, 8th Dist. Cuyahoga No. 92094, 2009-Ohio-
4983, ¶ 30; State v. Goble, 2014-Ohio-3967, 20 N.E.3d 280, ¶ 11-13 (6th Dist.);
United States v. Abernathy, 843 F.3d 243, 250 (6th Cir.2016). We concluded that
without the stale Butler County evidence, the Hamilton County detective’s affidavit
fell “far below a showing of probable cause.” Id. at ¶ 24.
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{¶7} Next, we considered whether the trial court had properly applied the
good-faith exception. Our inquiry focused on the third exception to the good-faith
exception: scenarios where “police have relied on a warrant based on an affidavit so
lacking indicia of probable cause that no official could reasonably believe in its
existence[.]” State v. Hampton, 1st Dist. Hamilton No. C-080187, 2008-Ohio-6088,
¶ 19. See State v. George, 45 Ohio St.3d 325, 331, 544 N.E.2d 640 (1989) (same);
United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)
(same). Surveying established Ohio and federal precedent, we determined that “[a]
reasonably well-trained officer should have known that information obtained from a
drug-trafficking investigation in another county—conducted 17 to 33 months ago and
concerning a different residence—was too stale to justify issuance of a warrant for a
new residence without meaningful, present corroboration. Likewise, a reasonably
well-trained officer should have known that a marijuana cigar, some marijuana
leaves, two straws, and a couple of plastic bags—left on the curb and accessible to the
public for an unknown amount of time—were insufficient to establish probable cause
on their own.” Martin at ¶ 29. (Internal citations omitted.) Finding this affidavit to
be “so lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable,” we concluded that the good faith exception did not apply and
reversed the judgment of the trial court. State v. Castagnola, 145 Ohio St.3d 1, 2015-
Ohio-1565, 46 N.E.3d 638, ¶ 98; Martin at ¶ 34.
{¶8} Mr. Stonitsch pursued his appeal independently of Ms. Martin, but
now raises the same assignment of error, contending that the trial court improperly
applied the good-faith exception to deny his motion to suppress. This court held oral
arguments for Mr. Stonitsch’s appeal after Martin’s release and invited the parties to
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OHIO FIRST DISTRICT COURT OF APPEALS
identify any distinguishing features that could support a different outcome here.
Finding no basis for distinction, we hereby adopt the reasoning outlined in Martin
and sustain Mr. Stonitsch’s sole assignment of error.
{¶9} Our review of the briefs and arguments in this appeal only enhances
the conclusion we reached in Martin. Mr. Stonitsch’s appellate brief emphasizes the
additional point that the Hamilton County detective neglected to execute the search
warrant until June 26, a full week after conducting the trash pull. This means that,
at best, he had evidence of personal drug use associated with the residence at some
point one to two weeks prior to the search. This evidence simply does not “support[]
a conclusion of the probable presence of contraband” at the property “on the day of
the search.” See Weimer, 8th Dist. Cuyahoga No. 92094, 2009-Ohio-4983, at ¶ 26.
See also Abernanthy, 843 F.3d at 255 (“The inability to tell when drugs were last in
the home diminishes any inference that drugs were still in the home.”).
{¶10} We are further concerned by the revelation in this appeal that one of
the precious few pieces of newer evidence contained in the affidavit—Mr. Stonitsch’s
2018 conviction—was presented to the issuing judge in an arguably misleading
fashion. The affidavit conveys that a “search of Jacob N. Stonitsch revealed felony
trafficking in drugs and possession of drugs. Jacob N. Stonitsch was convicted of
attempted trafficking in marijuana in February of 2018.” (Emphasis added.) But at
oral arguments, both parties agreed that the 2018 conviction was a misdemeanor.
The state could identify no other convictions, let alone a conviction for felony
trafficking. This renders the affidavit’s language surrounding the 2018 conviction
arguably misleading, further bolstering our conclusion about the unreasonableness
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of reliance on the warrant. See Weimer at ¶ 30-32 (the law requires removal of
misleading statements from the officer’s affidavit).
{¶11} Confronted with the absence of present drug-trafficking evidence in
this case, the state urges us to consider Mr. Stonitsch’s identity itself—specifically,
his identity as an individual previously charged with drug trafficking—as present
corroboration sufficient to revive stale evidence. We cannot accept this logic, which
dances dangerously close to the sentiment: “Once a drug dealer, always a drug
dealer.” The state cannot wield a years-old drug investigation (that yielded only a
misdemeanor conviction) as a scarlet letter, obviating its burden to produce a
present showing of probable cause. See Sgro v. United States, 287 U.S. 206, 210, 53
S.Ct. 138, 77 L.Ed. 260 (1932) (“[I]t is manifest that the proof must be of facts so
closely related to the time of the issue of the warrant as to justify a finding of
probable cause at that time.”). Were we to endorse this reasoning, we risk creating
two tiers of Fourth Amendment protection: one for individuals without prior drug
offenses (against whom the state must gather present evidence of probable cause),
and another for those with a prior drug offense (for whom stale evidence will suffice).
“The Constitution does not allow such a polarization of Fourth Amendment rights.”
State v. Warren, 129 Ohio App.3d 598, 606, 718 N.E.2d 936 (1st Dist.1998).
{¶12} For all the foregoing reasons, and as explained further in Martin, we
sustain Mr. Stonitsch’s assignment of error and reverse the trial court’s judgment
denying his motion to suppress. His convictions are vacated and the cause
remanded to the trial court with instructions that his motion to suppress be granted.
Judgment reversed, convictions vacated, and cause remanded.
BOCK, J., concurs.
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OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, P.J., dissents.
MYERS, J., dissenting.
{¶13} I respectfully dissent. For the reasons stated in my dissent in State v.
Martin, 1st Dist. Hamilton No. C-200067, 2021-Ohio-2599, I would hold that the
trial court did not err in finding that the good-faith exception to the exclusionary rule
applied. Therefore, I would affirm the trial court’s denial of the motion to suppress.
Please note:
The court has recorded its entry on the date of the release of this opinion
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