STATE OF OHIO, Plaintiff-Appellee, v. KACY CLOUSER, Defendant-Appellant.
Case No. 16CA4
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY
RELEASED 08/08/2016
2016-Ohio-5370
Hoover, J.
DECISION AND JUDGMENT ENTRY
Adam J. King, Hillsboro, Ohio, for defendant-appellant Kacy Clouser.
Anneka P. Collins, Highland County Prosecuting Attorney, Hillsboro, Ohio, for plaintiff-appellee State of Ohio.
Hoover, J.
{¶1} This is an appeal from a judgment of conviction and sentence entered by the Highland County Court of Common Pleas following the entry of a no contest plea by Kacy Clouser (“Clouser“), appellant herein, to two counts of drug possession. On appeal, Clouser contends that the trial court erred in overruling his motion to suppress evidence found in a search of his apartment during the execution of a search warrant. Specifically, Clouser contends that certain information contained in the affidavit for search warrant was either stale or knowingly false and not accurate, and that the affidavit‘s remaining content was insufficient to establish the probable cause necessary for the issuance of the warrant. We find that the disputed information contained within the affidavit for search warrant was neither knowingly false nor stale; and thus, probable cause existed supporting the issuance of the warrant. Accordingly, we affirm the judgment of the trial court.
{¶2} In May 2015, officers from the US 23 Major Crimes Task Force began investigating allegations that Clouser was involved in drug trafficking. On July 27, 2015, Clouser was observed driving a silver Lincoln in the area of a controlled drug buy. On July 29th and 30th, 2015, officers from the task force used a confidential informant to purchase heroin from Clouser in an undercover drug buy operation. During both controlled buys, Clouser was seen operating a silver Lincoln. As a result of the undercover buys, Clouser was indicted by a Highland County Grand Jury in Case Number 15CR256 of two counts of trafficking in heroin and two counts of possession of heroin. Brittany Edwards, Clouser‘s girlfriend, was also indicted on one count of trafficking in heroin and one count of possession of heroin as a result of the investigation. Clouser‘s indictment also included a specification seeking to forfeit the silver Lincoln he was seen driving when the drug transactions were alleged to have occurred.
{¶3} A warrant was issued for Clouser‘s arrest pursuant to the indictment in Case Number 15CR256. On October 13, 2015, Deputy Sheriff Chris Bowen of the Highland County Sheriff‘s Office went to Clouser‘s apartment in order to arrest Clouser and serve him with his indictment. While watching the property, Bowen observed Edwards come out of Clouser‘s apartment and go to a silver Lincoln parked in the parking lot. It was the same silver Lincoln that Clouser was observed driving during the July controlled buys. After watching the apartment for some time, Bowen and other officers approached the apartment and arrested both Clouser and Edwards on their felony warrants.
{¶4} At that time, and based on the forfeiture specification in Case Number 15CR256, the Highland County Sheriff‘s Office conducted a pre-towing inventory search of the silver
{¶5} Based on the inventory search, observations, and known history, Bowen submitted an affidavit for a search warrant to search Clouser‘s apartment on October 13, 2015. The four-page affidavit detailed the months long investigation into Clouser‘s drug dealing, including information from a confidential informant regarding a drug transaction between Clouser and an individual named Chad Eggleton in May 2015. The affidavit averred that Clouser was driving the silver Lincoln at the time of the Eggleton transaction. The affidavit also included details about the controlled drug buys in July 2015, including the fact that Clouser was observed driving the silver Lincoln during those transactions. Finally, the affidavit detailed the actions of Edwards entering and removing items from the silver Lincoln while Bowen watched the property; the affidavit also provided details of the items found in the silver Lincoln during the inventory search of the vehicle prior to it being towed. After reviewing the affidavit, a judge from the Hillsboro Municipal Court issued a search warrant for Clouser‘s apartment and law enforcement quickly executed the warrant. The search revealed multiple items used in the trafficking of drugs, including scales, multiple needles, and plastic baggies. Moreover, heroin, methamphetamine, cocaine, and marijuana were also found in the residence.
{¶6} As a result of the search, Clouser was indicted by a Highland County Grand Jury in Case Number 15CR289 of six counts – including several drug trafficking and drug possession charges, as well as a forfeiture specification for money found in Clouser‘s possession. Thereafter, Clouser moved to suppress all evidence seized from his apartment in Case Number 15CR289, contending (1) that references in the search warrant affidavit that the silver Lincoln belonged to Clouser were false and misleading because the vehicle was titled to an individual
II. Assignment of Error
{¶7} Clouser assigns the following error for our review:
The trial court erred by overruling Appellant‘s motion to suppress evidence given that the affidavit for a search warrant contained both stale information and knowingly false information that should have been excised by the trial court, rendering the remainder of the affidavit insufficient to support the finding of probable cause to issue the warrant for a search of the premises.
III. Law and Analysis
{¶8} In his sole assignment of error, Clouser contends the trial court should have granted his motion to suppress evidence seized under the search warrant because certain information supporting the search warrant affidavit was knowingly false and/or stale. He argues that if the contested evidence is set aside from consideration, then the remaining portions of the affidavit are insufficient to establish probable cause.
{¶10} The Fourth Amendment to the U.S. Constitution, applied to the states through the Fourteenth Amendment, provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Ohio Constitution contains a nearly identical provision.
{¶11} “A neutral and detached magistrate may issue a search warrant only upon the finding of probable cause.” State v. Gilbert, 4th Dist. Scioto No. 06CA3055, 2007-Ohio-2717, ¶ 13, citing United States v. Leon, 468 U.S. 897, 914-915, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) and
A. Alleged false statements
{¶12} Clouser first argues that the affidavit upon which the search warrant was based failed to support a finding of probable cause because the affidavit referred to the silver Lincoln as belonging to him, despite the fact that the silver Lincoln had been titled to a individual named Tammy Rhoades since July 27, 2015. At the suppression hearing, a certificate of title for the vehicle was presented by the defense indicating that Clouser had transferred title to the vehicle to
{¶13} An affidavit supporting a warrant enjoys a presumption of validity. State v. Jones, 90 Ohio St.3d 403, 412, 739 N.E.2d 300 (2000), citing State v. Roberts, 62 Ohio St.2d 170, 178, 405 N.E.2d 247 (1980). The burden of initially establishing whether a search was authorized by a warrant is on the party challenging the legality of the search. Xenia v. Wallace, 37 Ohio St.3d 216, 217-218, 524 N.E.2d 889 (1988). In order to invalidate a search warrant due to false statements in the underlying affidavit, the defendant must show by a preponderance of the evidence that the affiant made false statements intentionally, or with reckless disregard for the truth. State v. Waddy, 63 Ohio St.3d 424, 441, 588 N.E.2d 819 (1992), superseded by state constitutional amendment on other grounds, citing Franks v. Delaware, 438 U.S. 154, 155–156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). “Reckless disregard” occurs when an affiant has serious doubts about the truth of an assertion. Id. However, “[e]ven if the affidavit contains false statements made intentionally or recklessly, a warrant based on the affidavit is still valid unless, ‘with the affidavit‘s false material set to one side, the affidavit‘s remaining content is insufficient to establish probable cause * * *.’ ” Id., quoting Franks at 156.
{¶14} Here, after reviewing the affidavit and evidence established at the suppression hearing, we cannot say that the references in the affidavit referring to the silver Lincoln as Clouser‘s vehicle were false, or made with knowledge or intentional disregard for the truth.
B. Staleness of information
{¶15} Next, Clouser argues that information contained in Bowen‘s affidavit regarding the July 27th, July 29th, and July 30th controlled drug buys was stale at the time that Bowen applied for the warrant, must be excised from the warrant application, and cannot support a probable cause determination.
{¶16} Here, the drug transactions at issue occurred approximately two and a half months prior to the warrant application. ” ‘The more “stale” the evidence becomes, the less likely it is to
{¶17} In his affidavit, Bowen averred that he began a drug investigation of Clouser as early as May 2015. At that time a confidential informant advised Bowen that Clouser was selling heroin from his apartment, and that the confidential informant had actually taken Eggleton to Clouser‘s apartment to purchase heroin. The confidential informant further advised that Clouser drove a silver Lincoln. In July 2015, a second confidential informant provided information that Clouser was selling heroin and that he drove a silver Lincoln. On July 27th, affiant observed Clouser driving the silver Lincoln in the vicinity of a controlled drug buy. The July 29th and July 30th transactions involved a confidential informant‘s direct purchase of heroin from Clouser. In both instances Clouser was seen driving the silver Lincoln. Then, on October 13, 2015, the date of the warrant application, and the date of Clouser‘s arrest for the July 2015 transactions, Bowen observed the silver Lincoln in front of Clouser‘s apartment. A lawful search of the silver Lincoln on that date revealed evidence of drugs and drug paraphernalia, as well as a satellite television bill addressed to Clouser. Given that the silver Lincoln was used during the July transactions, and also was revealed to contain drugs and drug paraphernalia on the very day of the warrant application, and that the silver Lincoln was parked directly in front of Clouser‘s apartment and contained a bill belonging to Clouser, we find that the affidavit establishes a pattern of conduct
IV. Conclusion
{¶18} Based upon the foregoing, we conclude that Bowen‘s affidavit contained sufficient and valid information to support a finding of probable cause to issue the warrant. Accordingly, we overrule Clouser‘s sole assignment of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ____________________________
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.