2019 Ohio 4837
Ohio Ct. App.2019Background
- Neighbor reported concerns about two horses at Bianca Marcellino’s property; a Geauga County Humane Society agent (Courtwright) inspected them repeatedly over ~1 month and then sought a search warrant.
- Courtwright’s affidavit described the horses as emaciated, lacking proper care, and stated Marcellino had been uncooperative; a warrant issued and the horses were seized.
- A veterinarian testified the horses needed immediate treatment; Humane Society rehabilitated them to health within ~60 days and incurred $14,773.03 in costs.
- A jury convicted Marcellino of two counts of second-degree misdemeanor cruelty to animals (R.C. 959.13(A)(1)).
- Marcellino was sentenced to 90 days (suspended) and five years probation; the court ordered restitution to the Humane Society for the rehabilitation costs.
- On appeal Marcellino raised (1) that the affidavit contained deliberate/reckless falsehoods requiring a Franks hearing, and (2) that restitution to the Humane Society was unauthorized; the appellate court affirmed the convictions but vacated the restitution order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Franks evidentiary hearing was required to challenge Courtwright’s affidavit | Affidavit supported probable cause; no deliberate or reckless false statements requiring a Franks hearing | Affidavit contained material deliberate/reckless falsehoods (contradicted by affidavits of veterinarian and others) that warranted a Franks hearing | Court: reviewed denial under clear-error where based on pleadings; defendant failed to show deliberate/reckless falsity; excising challenged statements still left ample probable cause; no Franks hearing required |
| Whether restitution may be ordered to the Humane Society for costs of rehabilitating animal victims | Restitution to the entity that bore the economic loss (Humane Society) is appropriate | Humane Society is not a statutory "victim" under R.C. 2929.28 and restitution to a governmental/humane entity is unauthorized; restitution must be to the actual victim(s) | Court: restitution vacated—humane societies/governmental entities are not "victims" entitled to restitution under R.C. 2929.28; fines under R.C. 959.13(C) provide statutory remedy |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (1978) (sets requirements for an evidentiary hearing when an affidavit contains alleged deliberate or reckless falsehoods)
- U.S. v. Fowler, 535 F.3d 408 (6th Cir. 2008) (discusses standards of review for denial of a Franks hearing)
- United States v. Williams, 737 F.2d 594 (7th Cir. 1984) (explains that "reckless disregard for the truth" requires serious doubts about allegations)
- U.S. v. Karo, 468 U.S. 705 (1984) (authorizes excising tainted material from an affidavit and upholding a warrant if remaining content supports probable cause)
- State v. Gross, 97 Ohio St.3d 121 (Ohio 2002) (applies the principle that a warrant remains valid if untainted material establishes probable cause)