STATE OF OHIO v. JACKIE L. BELL II
C.A. CASE NO. 2012 CA 15
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
October 19, 2012
2012-Ohio-4853
T.C. NO. 11CR371 (Criminal appeal from Common Pleas Court)
Rendered on the 19th day of October, 2012.
ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecutor, 61 Greene Street, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
SCOTT BISSELL, Atty. Reg. No. 0085229, 3080 Ackerman Blvd., Suite 320, Kettering, Ohio 45429
Attorney for Defendant-Appellant
DONOVAN, J.
{¶ 1} Defendant-appellant Jackie Bell, II, appeals his conviction and sentence for one count of possession of heroin (in an amount exceeding 100 unit doses but less than 500 unit doses), in violation of
{¶ 3} Based on the information they had received, Officers Hiles and Hardman of the Fairborn Police Department traveled to the Motel 6. Upon arriving, the police officers discovered that Room 158 at the motel was registered to Bell. The police officers went to the room and made contact with Bell and a female, Katie Hovatic, who was also present in the room. The officers had been ordered to secure the room until a search warrant could be obtained, and they ordered Bell and Hovatic to vacate the premises. Prior to obtaining the search warrant, the officers conducted a protective sweep of the motel room in order to determine whether anyone else was present. Although no one else was found inside the room, Officer Hardman observed two small pieces of plastic baggies in plain view during the protective sweep. Once the sweep was completed, the officers left the room until the search warrant arrived.
{¶ 4} Once the police secured the warrant, they conducted a complete search of Bell‘s motel room wherein they discovered a pill bottle containing 125 capsules of heroin, another pill bottle containing non-encapsulated heroin, a cigar containing marijuana, two pieces of torn plastic baggie, two cell phones, and Bell‘s driver‘s license. Based on the evidence seized from the motel room, Bell was arrested and taken to jail.
{¶ 5} On July 1, 2011, Bell was charged by indictment with one count of trafficking in
{¶ 6} Bell‘s case went to trial on January 23, 2012. After opening statements were made by both parties, the State dismissed one count of possession of heroin, as well as the tampering with evidence count. At the close of the State‘s case, Bell made a
{¶ 7} It is from this judgment that Bell now appeals.
{¶ 8} Bell‘s first assignment of error is as follows:
{¶ 9} “THE TRIAL COURT ERRONEOUSLY OVERRULED THE APPELLANT‘S MOTION TO SUPPRESS.”
{¶ 10} In his assignment, Bell contends that the trial court erred when it overruled his motion to suppress. Specifically, Bell argues that the trial court erred by failing to suppress any and all evidence obtained as a result of the unlawful search and seizure of his motel room prior to obtaining a search warrant.
{¶ 11} In regards to a motion to suppress, “the trial court assumes the role of trier of facts 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). The court of appeals must accept the trial
{¶ 12} The Fourth Amendment protects individuals from an unreasonable search in their homes. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. White, 175 Ohio App.3d 302, 2008-Ohio-657, 886 N.E.2d 904 (9th Dist.). The sanctity of the home extends to any area where one has a legitimate and reasonable expectation of privacy, including a motel room. State v. Norris, 2d Dist. Montgomery No. 17689, 1999 WL 1000034 at * 2-3 (Nov. 5, 1999). Police may not enter one‘s home to perform a search or to seize without a warrant, absent consent or exigent circumstances. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The United Statеs Supreme Court has held that an exigent circumstance is (1) an emergency situation which arises when a person in the home is in need of “immediate aid” or there is a life-threatening situation, or (2) a “hot pursuit.” Mincey v. Arizona, 437 U.S. 385, 392-393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978);State v. Bowe, 52 Ohio App.3d 112, 113, 557 N.E.2d 139 (9th Dist.1988). “The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal.” Id. at 392. An important factor in determining whether exigent circumstances exist is the gravity of the underlying offense. Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984).
{¶ 13} A warrantless entry into one‘s home is justified if the person whose property is being searched voluntarily gives consent to the entry. State v. Asworth, 10th Dist. Franklin No. 90AP-916, 1991 WL 54181, *4 (April 11, 1991), citing Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). In examining the record, we find no indication of Bell‘s consent to permit the police officers to enter his motel room. More importantly, both Detective Ryan Whittaker and Detective Ben Roman specifically testified at the suppression hearing that no exigent circumstances existed prior to the police officers’ decision to remove the occupants of the motel room and perform a warrantless protective sweep of the room. Accordingly, we agree with the trial court which concluded that there were clearly no exigent or emergency circumstances which justified the officers’ warrantless protective sweep of Bell‘s motel room. Thus, we reject the State‘s argument that the officers’ initial warrantless entry into Bell‘s motel room was justified by any exception to the warrant requirement. Further, we note that the record is devoid of any evidence that the officers who performed the protective sweep had any probable cause to believe that anyone else was present in the room after they removed Bell and his female friend.
{¶ 14} Bell also argues that the search warrant was tainted because the officers’ observations regarding the pieces of plastic baggie made during the initial warrantless entry into Bell‘s motel room could not constitute proper grounds for a valid search warrant. The U.S. Supreme Court, however, has held that, after excising tainted information from a supporting affidavit, “if sufficient untainted evidence was presented in the warrant affidavit to estаblish probable cause, the warrant was nevertheless valid.” United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). It is well-settled that “the ultimate inquiry *** is not whether the underlying affidavit contained allegations based upon illegally obtained evidence, but whether, putting aside all tainted allegations, the independent and lawful information stated in the affidavit suffices to show probable cause.” State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, quoting United State v. Levasseur, 620 F.Supp. 624, 631 (E.D.N.Y.1985). In the instant case, the officers’ observations during the initial illegal entry into Bell‘s motel room arе not critical to establishing probable cause. Therefore, we find that the trial court properly excised the officers’ observations regarding the pieces of plastic baggie (paragraph seven) from the supporting affidavit for the warrant.
{¶ 16} “2. On May 19, 2011 at approximately 0330 hours Sgt. Ricketts, Officer May, and Officer Bair were dispatched to 329 E. Emerson Ave. apаrtment C reference [sic] an unconscious non breathing subject. Fairborn Fire Department was also dispatched to the scene. Upon arrival Officer May met with Fairborn medic J. Lawrence who stated he had documented the death of a Brandon Murray at 0335 hours. The residence of 329 E. Emerson Ave. apt. C was secured and a death investigation was initiated. The tenant of 329 E. Emerson Ave. apt. C was determined to be Emily Minehart who wаs also present. During the investigation Sgt. Ricketts contacted Greene County Coroner Investigator Huston to respond to the scene. During the investigation Greene County Coroner Investigator Huston located a needle mark on Murray‘s left forearm.
{¶ 17} “3. During the investigation Officer Bair spoke with Nicole Bayard at 335 E. Emerson Ave. apartment C. Bayard informed Officer Bair that Murray arrived at her residence at approximately 2000 hours on May 18, 2011. She further stated that Murray left several times between 2000 hours on May 18, 2011 and 0100 hours on May 19, 2011. Bayard further stated during one of those times he went to Sabrina Chafin‘s apartment located 211 E. Emerson Ave., Fairborn and borrowed her cell phone. Officer Bair continued to speak with Bayard and she stated that Murray admitted to using heroin, vicodin, and xanax. Bayard advised her brother Dillon Bayard arrived and Murray and Dillon left together. Officer Bair spоke with Dillon and he stated he arrived at his sister‘s apartment and left with Murray. Dillon stated that Murray asked him to take him to the Motel 6 because ‘Jay’ owed him money. Dillon stated after going to the Motel 6 he took Murray
{¶ 18} “4. On May 19, 2011 I spoke with Det. Roman of the Fairborn Police Department. Det. Roman stated that he had previously identified ‘Jay’ as Jackie Bell II. Det. Roman further stated that he had received information from a credible and reliable source that Jackie Bell II is involved in drug trafficking. The source stated that he/she has purchased heroin from Bell in the past for $10.00 a capsules [sic]. The source further stated that he/she has been purchasing heroin from Bell for approximately four months. The source also provided Det. Roman with a phone number for Jackie Bell and that phone was (614) 783-8569. The same phone number last dialed from the phone located under the body of Brаndon Murray. Det. Roman further advised his source has provided credible information in the past on drug traffickers and has completed controlled drug purchases in the past under the guidance of Det. Roman.
{¶ 19} “5. On May 19, 2011, Det. Jahns spoke with the front desk clerk identified as Brenda Royse at the Motel 6. The clerk stated that the room is rented by a male identified as Jackie Bell II. Royse stated that a maintenance employee identified as Michael Wick had been in Jackie Bell‘s room on May 18, 2011. Royse advised Wick came to her and stated he observed a large amount of currency in the room. Brenda Royse further stated that Jackie Bell II is paying day by day
{¶ 20} “6. On May 19, 2011 Det. Roman contacted Michael Wick and spoke with him over the phone. During the phone conversation Wick informed Det. Roman that he was in Jackie Bell‘s room on May 18, 2011 at apрroximately 1545 for maintenance work and observed a black male and white female inside the room. Wick further informed Det. Roman that he observed a large stack of money several inches thick. Wick stated he would estimate the stack of money to be approximately three inches thick. Wick stated that he believed this was suspicious and informed the desk clerk Brenda Royse.”
{¶ 21} Upon review, we find no error in the trial сourt‘s suppression ruling. “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, following and quoting Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
{¶ 22} “In reviewing the sufficiency of probable cause in an affidavit submitted in support of a search warrant issued by a magistrate, neither a trial court nor an appellate court should substitute its judgment for that of the magistrate by conducting a de novo determination as to whether the affidavit contains sufficient probable cause upon which that court would issue the search wаrrant. Rather, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In conducting any after-the-fact scrutiny of an affidavit submitted in support of a search warrant, trial and appellate courts should accord great deference to the magistrate‘s determination of probable cause, and doubtful or marginal cases in this area should
{¶ 23} In the instant case, the municipal court judge possessed a substantial basis for concluding that probable cause existed. Det. Whittaker‘s affidavit established Bell was known to police as a drug trafficker. Det. Roman‘s “reliable” source informed him that “he/she” had purchased encapsulated heroin from Bell in the recent past. The source also stated that “he/she” had been buying heroin from Bell for the past four months. Bell‘s phone number was the last number called from a cell phone in the possession of Brandon Murray, who had just died from a potential drug overdose. Additionally, the affidavit stated that Murray had contact with Bell at the Motel 6 on the night before his death. Lastly, the affidavit states that a maintenance worker observed a large stack of money in Bell‘s motel room which he believed to be suspicious. Based on the independent information contained in the affidavit, it was clearly reasonable for the municipal court judge to conclude that heroin would be found in Bell‘s motel room. Thus, the search warrant was supported by probable cause.
{¶ 24} Bell‘s first assignment of error is overruled.
{¶ 25} Bell‘s second and final assignment of error is as follows:
{¶ 26} “THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANT TO A SENTENCE OF FIVE YEARS IN PRISON AND FORFEITING THE APPELLANT‘S MONEY.”
{¶ 27} In his final assignment, Bell argues that the trial court erred when it sentenced him to five years in prison. Additionally, Bell argues that the trial court erred when it ordered him to forfeit the $122.00 in the motel room at the time of his arrest. In support of his argument, Bell points out that the forfeiture specification was attached to Count I of the indictment which was dismissed at the close of the State‘s case upon a
{¶ 28} A trial court has broad disсretion in sentencing a defendant and a reviewing court will not interfere with the sentence unless the trial court abused its discretion. State v. Reese, 2d Dist. Montgomery No. 21825, 2007-Ohio-6696; State v. Durham, 2d Dist. Montgomery No 21589, 2007-Ohio-6262; State v. Rose, 2d Dist. Montgomery No. 21673, 2007-Ohio-4212; State v. Slone, 2d Dist. Greene No. 2005 CA 79, 2007-Ohio-130. A court will not typically be found to have abused its discretion in sentencing if the sentence it imposes is within the statutory limits. State v. Muhammad, 8th Dist. Cuyahoga No. 88834, 2007-Ohio-4303; State v. Burge, 82 Ohio App.3d 244, 249, 611 N.E.2d 866 (10th Dist.1992).
{¶ 29} After Foster, trial courts are not required to make any findings or give reasons before imposing any sentence within the authorized statutory range, including maximum, consecutive, or more than minimum sentences. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, syllаbus at ¶ 7. Courts, nevertheless, are still required to comply with the sentencing laws unaffected by Foster, such as
{¶ 31} Lastly, Bell argues that the trial court erred when it ordered the forfeiture of the money found in the motel room because Count I, to which the forfeiture specification was attached, was dismissеd, and Bell was acquitted. Upon review, we find Bell‘s argument in this regard to be without merit. Pursuant to
{¶ 32}
{¶ 33} The judgment of conviction specifically states as follows:
The Court finds that the defendant has been convicted: by a jury after a jury trial; on January 24, 2012, of the following offenses: Fоrfeiture Specification: The Grand Jurors further find and specify that certain property is subject to criminal forfeiture to the State of Ohio, by and through the Greene County Prosecutor, for distribution to the Fairborn Police Department, as provided by law under Chapter 2981 of the Ohio Revised Code, to wit: cash monies in the amount of $122.00, which the defendant had in his possession and said monies are proceeds of criminal offenses.
{¶ 34} The judgment of conviction also states that Bell was found guilty by a jury of possession of heroin. We note that the conviction for possession of heroin was accompanied by a verdict form signed by all twelve jurors. Following the jury‘s guilty verdict and despite that the judgment entry of conviction contains the forfeiture specification, the record establishes that the trial court did not submit the specification to the jury for further findings, as requirеd by
{¶ 35} Bell‘s second and final assignment of error is overruled in part and sustained in part.
{¶ 36} The trial court‘s improper forfeiture of Bell‘s money is reversed and vacated. In all other respects, the judgment of the trial court is affirmed.
Copies mailed to:
Elizabeth A. Ellis
Scott Bissell
Hon. Stephen A. Wolaver