2013 Ohio 2577
Ohio Ct. App.2013Background
- Kilbarger was convicted of possession of cocaine and marijuana after a search of his home based on a warrant supported by a Franks/causation affidavit.
- The affiant claimed a confidential informant (CI) had provided reliable information that Kilbarger and a co-conspirator operated a large drug-trafficking organization.
- The magistrate issued a search warrant for Kilbarger’s residence at 508 West Sherry Street based on the affidavit.
- Kilbarger moved to suppress the evidence, arguing the affidavit contained false statements and omissions under Franks v. Delaware and failed to establish probable cause.
- The trial court denied Franks relief and held the affidavit supported probable cause; Kilbarger was convicted of possession on one count and acquitted on trafficking and corrupt-activity counts, with an aggregate two-year sentence on the remaining conviction.
- The court of appeals affirmed, holding the affidavit provided substantial basis for probable cause and Kilbarger failed to establish a right to a Franks hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a full Franks hearing was required | State contends no full hearing was required; the initial Franks hearing sufficed | Kilbarger argues a substantial preliminary showing necessitates a full hearing addressing potential misrepresentations | No reversible error; no substantial showing required a full Franks hearing |
| Whether the affidavit established probable cause for the search | State asserts the CI information, corroborated by surveillance and controlled buys, created a substantial basis for probable cause | Kilbarger contends the information was stale and failed to show probable cause for the search of his residence | Probable cause shown; magistrate had substantial basis to believe drugs would be found at Kilbarger’s home |
Key Cases Cited
- Illinois v. Gates, 462 U.S. 213 (U.S. (1983)) (totality-of-the-circumstances standard for probable cause)
- State v. George, 45 Ohio St.3d 325 (Ohio 1989) (magistrate’s probable-cause determination affords deference to review)
- Franks v. Delaware, 438 U.S. 154 (U.S. (1978)) (requires a hearing when substantial preliminary showing of false statements/omissions is made)
- U.S. v. Fowler, 535 F.3d 408 (6th Cir. 2008) (discusses standard for Franks hearing review (unsettled splitting circuits))