2018 Ohio 4908
Ohio Ct. App.2018Background
- Keith Nettles was indicted on multiple drug-related felonies after DEA intercepted communications from a target phone; he was tried on 15 counts and convicted on 11 counts, receiving a total mandatory sentence of 34 years.
- The interception warrant was issued June 19, 2014 in Sandusky County authorizing interception at a listening post in Toledo (Lucas County).
- Nettles moved to suppress all evidence derived from the interception warrant, arguing lack of issuing-court jurisdiction, failure to include the Attorney General’s written review under R.C. 2933.53(B)(9), and insufficient probable cause.
- The trial court held a pretrial/suppression hearing (not a full evidentiary hearing), received a subsequently‑filed affidavit from the DEA agent attaching the AG’s letter, and denied suppression.
- At trial the state presented intercepted-call evidence and co-conspirator testimony; defense presented no evidence. Nettles appealed, raising suppression, the adequacy of the suppression hearing, consecutive-sentence findings, and alleged judicial fact‑finding at sentencing.
- The Sixth District affirmed: (1) Sandusky court had jurisdiction to issue the warrant, (2) the AG’s written review was effectively submitted and satisfied R.C. 2933.53(B)(9), (3) the affidavit provided probable cause, (4) the court did not abuse discretion by denying a full evidentiary hearing, and (5) consecutive and maximum sentences were lawful.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to issue interception warrant | State: issuing court may be where calls are heard/recorded or where intercepted device is installed | Nettles: warrant must be issued where the interception (listening device) is located (Lucas County) | Warrant valid if issued in county where tapped phone is located or where communications are first heard; Sandusky court had jurisdiction |
| Compliance with R.C. 2933.53(B)(9) (AG review) | State: AG letter was submitted contemporaneously and considered; affidavit later attached shows compliance | Nettles: AG statement not on the four corners of the application/warrant so requirement not satisfied | Court accepted DEA agent affidavit and AG letter filed contemporaneously; statutory requirement satisfied |
| Probable cause for interception warrant | State: affidavit, recorded calls, CI and agent expertise supported a substantial basis for probable cause | Nettles: CI reliability weak, surveillance produced no evidence, Detroit calls speculative | Magistrate had substantial basis; deferential review upheld probable cause |
| Scope of suppression hearing / need for evidentiary hearing | State: written submissions plus affidavit sufficed; no objection to the hearing scope | Nettles: factual disputes required full evidentiary hearing and live testimony | No abuse of discretion in declining full evidentiary hearing; defendant didn’t object to procedure and later filings cured issues |
| Consecutive sentences under R.C. 2929.14(C)(4) | State: record supports statutory findings and sentencing entry incorporates required findings | Nettles: findings not supported clearly and convincingly; rote recitation insufficient | Findings were stated at sentencing and incorporated into the entry; consecutive terms upheld |
| Maximum sentence and judicial fact‑finding | State: trial evidence and intercepted calls supported sentencing remarks | Nettles: court engaged in improper judicial fact‑finding to justify max sentence | Sentencing court’s remarks were supported by trial evidence and not an abuse of discretion; max term upheld |
Key Cases Cited
- State v. Burnside, 797 N.E.2d 71 (Ohio 2003) (standard of appellate review for suppression: mixed questions of law and fact)
- State v. George, 544 N.E.2d 640 (Ohio 1989) (reviewing court must ensure magistrate had substantial basis for probable cause)
- State v. Bonnell, 16 N.E.3d 659 (Ohio 2014) (trial court must make and incorporate R.C. 2929.14(C)(4) findings but need not state reasons)
- U.S. v. Henley, 766 F.3d 893 (8th Cir.) (interception occurs where contents are first heard; supports multi‑forum jurisdictional approach)
- Huff v. Spaw, 794 F.3d 543 (6th Cir.) (jurisdictional inquiry focuses on where a device acquires contents; court found facts not persuasive here)
- U.S. v. Rodriguez, 968 F.2d 130 (2d Cir.) (authority treating interception location as where contents are first heard)
- U.S. v. Denman, 100 F.3d 399 (5th Cir.) (same rule regarding locus of interception)