2016 Ohio 2779
Ohio Ct. App.2016Background
- Police investigated Mark Sekse for marijuana trafficking; an affiant sought a warrant based largely on information from a confidential informant (CI) and a second CI.
- The affiant had first met the primary CI during an undercover five-pound buy; the CI then gave a recorded, transcribed proffer to the prosecutor and affiant and expressed fear of Sekse.
- The warrant affidavit described the CI as "reliable," recounted purchases and observations of marijuana at Sekse’s residence, and referenced a second informant and DOJ reports.
- A search pursuant to the warrant recovered 212 pounds of marijuana from Sekse’s garage; Sekse later consented to a broader search of the home.
- Sekse moved for a Franks hearing, alleging nine material falsehoods or omissions in the affidavit; the trial court found the CI’s late denial not credible and denied the Franks hearing.
- Sekse pled no contest, was sentenced, and appealed the denial of the Franks hearing arguing the affidavit contained knowingly false statements and material omissions necessary to probable cause.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Sekse) | Held |
|---|---|---|---|
| Whether Sekse made a substantial preliminary showing under Franks to require a hearing | Affidavit was entitled to deference; purported inconsistencies either supported by record or immaterial to probable cause | Affiant included nine false statements/omissions (e.g., CI reliability, CI saw/drank money/visited home, criminal history) that were intentional or reckless and necessary to probable cause | Court: No Franks hearing required — Sekse failed to show intentional/reckless falsehoods or materiality to probable cause |
| Credibility of CI’s recantation affidavit | CI’s recantation was not credible and appeared motivated by fear/intimidation | CI’s affidavit denied telling affiant key facts (e.g., dealing with Sekse) undermining affidavit | Court: Trial court’s adverse credibility finding sustained; proffer transcript corroborated affiant’s account |
| Whether alleged false statements/omissions were necessary to probable cause | Even if some statements were inaccurate, other corroborating information in affidavit established probable cause | Alleged inaccuracies (e.g., basement, attempted-murder conviction, second CI visit) were material and would negate probable cause | Court: Any inaccuracy would not negate probable cause; many challenged points supported by proffer or DOJ reports or were immaterial |
| Standard of review for denial of Franks hearing | Warrant affidavits get deference; factual findings by trial court reviewed for clear error, legal conclusions de novo | Sekse urged de novo review to reconsider credibility and facts | Court: Applied clear-error to factual findings (deferential) and de novo to legal conclusions; affirmed denial |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (1978) (defendant must make substantial preliminary showing that affidavit contained intentional or reckless falsehoods material to probable cause to obtain a hearing)
- State v. McKnight, 107 Ohio St.3d 101 (2005) (material omissions in affidavits can be treated as false statements when designed to mislead or made in reckless disregard)