State v. Glynn , 2020 Ohio 4763 ( 2020 )

[Cite as State v. Glynn, 2020-Ohio-4763.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-13
:
v. : Trial Court Case No. 2018-CR-410
:
CHE D. GLYNN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 2nd day of October, 2020.
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MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney,
Greene County Prosecutor’s Office, 61 Greene Street, Suite 200, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
JOE CLOUD, Atty. Reg. No. 0040301, 3973 Dayton-Xenia Road, Beavercreek, Ohio
45432
Attorney for Defendant-Appellant
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WELBAUM, J.
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{¶ 1} Defendant-appellant, Che D. Glynn, appeals from his conviction in the
Greene County Court of Common Pleas after he pled no contest to one count of
conspiracy to trafficking in cocaine and one count of trafficking in heroin. In support of
his appeal, Glynn contends that the trial court erred as a matter of law and abused its
discretion when it failed to suppress evidence that was seized at his residence, because
it was obtained by virtue of a deficient search warrant that was issued without a showing
of probable cause. Upon review, we find that the affidavit filed in support of the search
warrant provided sufficient probable cause for the search of Glynn’s residence and that
the trial court did not err as a matter of law or abuse its discretion by failing to suppress
the evidence found therein. Accordingly, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On June 8, 2018, a Greene County grand jury returned a nine-count
indictment charging Glynn with possession of drugs, trafficking in drugs, aggravated
trafficking in drugs, and conspiracy to trafficking in drugs. The charges arose after law
enforcement officers executed a search warrant for Glynn’s residence on Dellwood Drive
in Fairborn, Ohio. During the search of Glynn’s residence, the officers discovered
approximately 25 grams of cocaine mixed with fentanyl inside multiple baggies. The
officers also discovered a scale covered with white residue, two cell phones, spoons with
white powder on them, and other items of drug paraphernalia. A second search warrant
was thereafter issued for the two cell phones discovered inside Glynn’s residence.
{¶ 3} After pleading not guilty to the indicted charges, Glynn filed a motion to
suppress the evidence obtained during the search of his residence and two cell phones.
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As part of his motion, Glynn argued that the search warrant issued for his residence was
defective because the affidavit filed in support of the warrant did not set forth sufficient
probable cause for the search. Glynn further argued that the search warrant for his two
cell phones was equally defective given that the phones would not have been discovered
but for the initial defective search of his residence.
{¶ 4} On October 10, 2018, the trial court held a hearing on Glynn’s motion to
suppress. During that hearing, the parties agreed that the issue raised in Glynn’s motion
required a “four corners analysis” whereby the trial court would simply review the affidavits
filed in support of the search warrants to determine whether the warrants were sufficiently
supported by probable cause. Therefore, neither party presented any witness testimony
at the hearing, but instead, they submitted the relevant search warrants and supporting
affidavits as joint exhibits. See Joint Exhibit Nos. 1 and 2.
{¶ 5} The affidavit filed in support of the search warrant for Glynn’s residence was
prepared by Det. Brian Neiford of the Fairborn Police Department. See Joint Exhibit No.
1. In the affidavit, Det. Neiford averred that he had been a law enforcement officer since
1995, a detective with the Fairborn Police Department for five years, and a Greene County
ACE Task Force agent since August 2017. Det. Neiford further averred that he had
attended training seminars on drug investigations, such as NARCO Basic Drug
Investigation School, and had investigated many different types of felony offenses that
had resulted in successful prosecutions.
{¶ 6} With regard to Glynn, Det. Neiford averred that a confidential source (“CS”)
placed telephone calls to Glynn on May 22 and 24, 2018, for purposes of arranging two
drug deals. During the May 22nd call, the CS spoke to Glynn’s wife and co-defendant,
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Loretta Glynn, and arranged to purchase one gram of heroin for $130. During the May
24th call, the CS spoke to Glynn directly and arranged to purchase one gram of heroin
for $135. Det. Neiford averred that during each call, Glynn and his wife told the CS to
meet them at their residence on Dellwood Drive in Fairborn.
{¶ 7} Det. Neiford’s affidavit next described the events surrounding the two drug
deals set up by the CS. Det. Neiford averred that prior to both drug deals, he and two
other detectives met with the CS at a predetermined location and searched the CS to
ensure that the CS did not have any money or contraband on his/her person. Thereafter,
the CS was provided with buy money and driven to the area of Glynn’s residence. Det.
Neiford averred that he observed the CS walk to Glynn’s residence where the CS met
Glynn. Det. Neiford then observed Glynn invite the CS into his residence.
{¶ 8} Det. Neiford also averred that the CS was electronically monitored during the
two drug deals at Glynn’s residence. During both drug deals, the CS gave the buy
money to Glynn, and Glynn thereafter retrieved the purported heroin/fentanyl and handed
it to the CS. Det. Neiford averred that the CS then exited the residence and walked back
to the detectives’ vehicle where the CS turned over the purported heroin/fentanyl. The
purported heroin/fentanyl was then taken to the property room at the Fairborn Police
Department.
{¶ 9} Det. Neiford further averred that he was familiar with the modus operandi of
persons involved in the illicit distribution of controlled substances. Det. Neiford then
described several known traits of drug traffickers, which included that “it is common for
drug traffickers and drug distributors to conceal drugs, contraband, proceeds of drug
sales, at locations within their residences * * *.” Joint Exhibit No. 1.
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{¶ 10} Det. Neiford also prepared the affidavit submitted in support of the search
warrant for the two cell phones discovered in Glynn’s residence. See Joint Exhibit No.
2. That affidavit contained the same basic information about Det. Neiford’s experience,
the two drug deals with Glynn, and the modus operandi of persons involved in the illicit
distribution of drugs. The affidavit also contained additional modus-operandi averments
regarding the use of cell phones, including that: “criminals will commonly document their
illegal activities via video and still photos created with the cellular phone camera” and also
“commonly store criminal associates’ names and phone numbers in the phone for easy
communication purposes.” Joint Exhibit No. 2.
{¶ 11} Det. Neiford additionally averred to the search of Glynn’s residence by the
ACE Task Force and all the contraband found as a result of the search. Specifically,
Det. Neiford stated that approximately 25 grams of suspected cocaine mixed with fentanyl
was discovered in multiple baggies inside Glynn’s residence. Det. Neiford also averred
that Glynn’s residence contained a scale covered with white residue, spoons with white
powder on them, items of drug paraphernalia, and the two cell phones that were the
subject of the warrant being applied for.
{¶ 12} After reviewing the supporting affidavits and the parties’ supporting
memoranda, on August 12, 2019, the trial court issued a decision denying Glynn’s motion
to suppress. Following the trial court’s decision, Glynn entered into a plea agreement
with the State and pled no contest to one third-degree felony count of conspiracy to
trafficking in cocaine in violation of R.C. 2923.01(A)(2) and R.C. 2925.03(A)(2), and one
third-degree felony count of trafficking in heroin in violation of R.C. 2925.03(A)(2). In
exchange for Glynn’s no contest plea and for his forfeiture of certain items of property,
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the State agreed to dismiss the remaining seven charges in the indictment.
{¶ 13} The trial court accepted Glynn’s no contest plea and found him guilty of
conspiracy to trafficking in cocaine and trafficking in heroin. Thereafter, the trial court
imposed an aggregate sentence of 24 months in prison, which the trial court stayed
pending an appeal from Glynn’s conviction. Glynn now appeals from his conviction,
raising two assignments of error for review.
First Assignment of Error
{¶ 14} Under his first assignment of error, Glynn contends that the trial court erred
as a matter of law when it overruled his motion to suppress the evidence seized from his
residence. Glynn argues that the evidence should have been suppressed because the
search warrant obtained for his residence was deficient in that it was issued without a
showing of probable cause. We disagree.
{¶ 15} When ruling on a motion to suppress, the trial court assumes the role of trier
of fact and “ ‘is in the best position to resolve questions of fact and evaluate the credibility
of witnesses.’ ” State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d
Dist.1996), quoting State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th
Dist.1994). We “must accept the trial court’s findings of fact if they are supported by
competent, credible evidence in the record.” State v. Isaac, 2d Dist. Montgomery No.
20662, 2005-Ohio-3733, ¶ 8, citing State v. Retherford, 93 Ohio App.3d 586, 592, 639
N.E.2d 498 (2d Dist.1994). Accepting those facts as true, we then must determine as a
matter of law, without deference to the trial court’s legal conclusion, whether the
applicable legal standard is satisfied. Id.-7-
{¶ 16} With regard to search warrants, it is well established that they “may only be
issued upon probable cause, supported by oath or affirmation particularly describing the
place to be searched, and the person and/or things to be seized.” State v. Perez, 2015-
Ohio-1753, 32 N.E.3d 1010, ¶ 9 (2d Dist.), citing State v. Jones, 143 Ohio St.3d 266,
2015-Ohio-483, 37 N.E.3d 123, ¶ 11; U.S. Constitution, Fourth Amendment; Ohio
Constitution, Article I, Section 14. Thus, “a request for a search warrant requires a sworn
affidavit ‘establishing the grounds for issuing the warrant.’ ” State v. McClain, 2015-
Ohio-3690, 41 N.E.3d 871, ¶ 5 (2d Dist.), quoting Crim.R. 41(C)(1). “The judge may issue
a search warrant if the judge finds, based on the information in the affidavit, that ‘probable
cause for the search exists.’ ” Id., quoting Crim.R. 42(C)(2).
{¶ 17} “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 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, 544
N.E.2d 640 (1989), paragraph one of the syllabus, quoting Illinois v. Gates, 462 U.S. 213,
238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “Ordinarily, ‘a probable cause inquiry
must be confined to the four corners of the affidavit.’ ” State v. Noble, 2d Dist.
Montgomery No. 28435, 2020-Ohio-695, ¶ 13, quoting State v. Klosterman, 114 Ohio
App.3d 327, 333, 683 N.E.2d 100 (2d Dist.1996).
{¶ 18} “ ‘[T]he duty of a reviewing court is simply to ensure that the magistrate had
a “substantial basis for * * * conclud[ing]” that probable cause existed.’ ” Jones at ¶ 13,
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quoting Gates at 238-239, quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct.
725, 4 L.Ed.2d 697 (1960). In doing so, “reviewing courts must examine the totality of
the circumstances.” Id., citing Gates at 238. “ ‘[T]rial 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.’ ” Id.
at ¶ 14, quoting George at paragraph two of the syllabus.
{¶ 19} Glynn first contends that the search warrant for his residence was issued
without probable cause because the affidavit filed in support of the search warrant failed
to validate the veracity and credibility of the CS. Specifically, Glynn argues that the
affidavit failed to aver how the CS knew Glynn and his wife, and whether the CS had ever
provided reliable information to law enforcement in the past that led to other successful
drug transactions and arrests. Glynn claims that without this information, the affidavit
failed to provide a substantial basis for the trial court to determine that the facts averred
in the affidavit were credible and true. Glynn’s claim lacks merit.
{¶ 20} We addressed a similar argument in State v. Lane, 2d Dist. Greene No. 07-
CA-14, 2008-Ohio-1605. In that case, the appellant argued, in part, that the affidavit
filed in support of a search warrant for his residence failed to establish probable cause
because the affidavit contained no averment from which the trial court could have
concluded that the confidential informants were credible, reliable sources of information.
Id. at ¶ 14. Despite this omission, we found that the totality of the circumstances set
forth in the affidavit established probable cause for the search warrant because the
information provided by the confidential informants was corroborated by the investigating
detective’s observations. Id. at ¶ 17. Specifically, we stated that:
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Detective Tidd did not aver that [the confidential informants] had
provided reliable information in the past. However, the basis of their
knowledge of the criminal activity each related was clear from the
information they provided. Further, the reliability of that information * * *
was demonstrated through its corroboration by the observations Detective
Tidd stated he had made on that day. Together those matters portray a
fair probability that evidence of criminal activity would be found in the place
to be searched. Probable cause for the warrant on which the search was
performed was therefore shown.
Id.
{¶ 21} Similarly, in State v. Curry, 2d Dist. Montgomery No. 25384, 2013-Ohio-
5454, we held that an affidavit containing a confidential source’s information about drug
activity at a certain duplex and a detective’s own observations from his independent
investigation of the matter sufficiently established probable cause for issuing a search
warrant. Id. at ¶ 13. The supporting affidavit in Curry averred that the detective was a
seasoned officer who received a tip from the confidential source that crack cocaine was
being sold out of a duplex. Id. at ¶ 12. The affidavit also averred that the detective
conducted surveillance on the residence and observed vehicles and people coming and
going in a manner that was consistent with other drug houses that the detective had
investigated in the past. Id. The affidavit further averred that the detective conducted
two successful controlled drug buys at the duplex using the confidential source. Id.
Given this information, we held that “[a]n issuing magistrate could have decided that there
was a fair probability that contraband would be found in the duplex.” Id. at ¶ 13.
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{¶ 22} Additionally, in State v. Harris, 2d Dist. Montgomery No. 18913, 2002 WL
1041868 (May 24, 2002), we indicated that a detective’s direct observations from a drug
investigation were sufficient to demonstrate probable cause for purposes of issuing a
search warrant. Specifically, we stated that:
The affiant relied on his own knowledge to describe how the
“confidential informant” entered the apartment, with money but no drugs,
and shortly thereafter emerged with drugs but no money, and that it
happened on two occasions. The affiant also set out his own observations
of the location and the significance of those observations. These direct
observations of the affiant were fully sufficient to demonstrate probable
cause that drugs were being sold at the location, and would likely be found
there in a subsequent search.
Id. at *3. See also State v. Talley, 2d Dist. Montgomery No. 24765, 2012-Ohio-4183,
¶ 10 (affidavit provided probable cause to issue a search warrant for a residence where
“the controlled buys along with other surveillance strongly suggested that the house was
repeatedly being used for drug transactions”).
{¶ 23} In this case, Glynn correctly points out that Det. Neiford’s supporting
affidavit did not aver whether the CS had provided reliable information to law enforcement
in the past or how the CS knew Glynn and his wife. Det. Neiford did, however, aver that
the CS called Glynn on two different days in May 2018 and made arrangements to
purchase heroin from Glynn at Glynn’s residence. Det. Neiford also averred that prior
to the two drug deals at Glynn’s residence, he and two other investigating detectives
searched the CS to ensure that he/she had no contraband on his/her person and provided
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the CS with buy money. Det. Neiford further stated that he and the other detectives
observed the CS walk toward Glynn’s residence, enter the residence after being invited
inside by Glynn, and exit the residence with the purported heroin/fentanyl in his/her
possession. Det. Neiford additionally averred that he and the other investigating
detectives electronically monitored the CS during the two drug deals and noted that Glynn
was the person who handed the CS one gram of heroin/fentanyl in exchange for the buy
money.
{¶ 24} When considering the totality of these circumstances, we find that the
information obtained from the CS and the direct observations of Det. Neiford provided a
substantial basis for the issuing judge to conclude that there was a fair probability that
evidence of criminal activity would be found at Glynn’s residence.
{¶ 25} Glynn, however, also argues that the supporting affidavit was insufficient to
establish probable cause because it does not clearly aver that the substance purchased
during the drug deals was heroin/fentanyl. Glynn claims that the illegal nature of the
substance is unclear because Det. Neiford’s affidavit referred to the substance as
“purported heroin/fentanyl” and did not include any information as to whether the
substance was verified to be an illegal drug. According to Glynn, the failure to field test
or otherwise verify the substance as an illegal drug prevented a finding of probable cause.
We disagree.
{¶ 26} A showing of probable cause requires proof less than that beyond a
reasonable doubt or by a preponderance of the evidence; it is only the probability, and
not a prima facie showing, of criminal activity. State v. Taylor, 82 Ohio App.3d 434, 440-
41, 612 N.E.2d 728 (2d Dist.1992); George, 45 Ohio St.3d at 329, 544 N.E.2d 640; Gates,
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462 U.S. at 235, 103 S.Ct. 2317, 76 L.Ed.2d 527. Therefore, “as to probable cause, an
evaluation of whether a substance purchased is a controlled substance need not be
based on an actual laboratory chemical analysis, but rather a reliable informant’s
observation is sufficient.” State v. Strait, 10th Dist. Franklin No. 81AP-218, 1981 WL
3671, *2 (Dec. 15, 1981), citing State v. Karr, 44 Ohio St.2d 163, 164, 339 N.E.2d 641(1975) (“A common and acceptable basis for the informant’s information is his personal
observation of the facts or events described to the affiant.”) For example, when a
confidential informant purchases a substance and then brings the purchased substance
to a law enforcement officer, “[s]uch action can establish a reasonable inference that the
informant would not have done this if he did not have reason to believe that the substance
was a controlled substance.” Id. at *2.
{¶ 27} Here, the fact that Glynn represented to the CS that the substance being
purchased was heroin warranted suspicion as to the illicit nature of the substance that
rose to the level of probable cause. Given the totality of the circumstances in this case,
which included the information provided by the CS and Det. Neiford’s observations, we
find that there was a substantial basis for the issuing judge to conclude that the substance
purchased at Glynn’s residence was an illegal drug.
{¶ 28} For all the foregoing reasons, we find that Det. Neiford’s supporting affidavit
sufficiently established probable cause to search Glynn’s residence. Because there was
sufficient probable cause, the search warrant for Glynn’s residence was properly issued.
Therefore, the evidence found during the search, including the evidence obtained from
the two cell phones, was not subject to suppression. Accordingly, the trial court did not
err as a matter of law when it overruled Glynn’s motion to suppress.
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{¶ 29} Glynn’s first assignment of error is overruled.
Second Assignment of Error
{¶ 30} Under his second assignment of error, Glynn contends that the trial court
abused its discretion and committed plain error by denying his motion to suppress
because: (1) the trial court did not conduct an underlying evaluation of whether it was
appropriate to issue a search warrant; and (2) the supporting affidavits were accepted
solely on the basis of Det. Neiford’s capacity as a law enforcement officer. We disagree
with both of Glynn’s claims.
{¶ 31} As to Glynn’s first claim, the record establishes that the parties agreed that
the underlying evaluation for determining whether the search warrants were properly
issued was limited to a “four corners analysis” of the supporting affidavits. See Trans.
(Oct. 10, 2018), p. 6. The record further establishes that the trial court conducted such
an analysis by determining whether the affidavits provided sufficient probable cause for
the requested searches. Contrary to Glynn’s claim otherwise, the trial court’s entry
denying Glynn’s motion to suppress set forth the trial court’s probable cause evaluation
in detail. Therefore, we find no abuse of discretion or plain error with regard to the trial
court’s underlying evaluation of the search warrants.
{¶ 32} Glynn’s second claim—that the trial court approved the supporting affidavits
simply because Det. Neiford was a law enforcement officer—is not supported by the
record. The record indicates that the trial court considered all of the information provided
in the supporting affidavits before denying Glynn’s motion to suppress. That information
included Det. Neiford’s observations and the information Det. Neiford obtained from the
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CS. Therefore, we find no abuse of discretion or plain error with regard to Glynn’s
second claim.
{¶ 33} Glynn’s second assignment of error is overruled.
Conclusion
{¶ 34} Having overruled both assignments of error raised by Glynn, the judgment
of the trial court is affirmed.
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TUCKER, P.J. and HALL, J., concur.
Copies sent to:
Marcy A. Vonderwell
Joe Cloud
Hon. James A. Brogan, Visiting Judge