STATE OF OHIO v. TINA EVANS
No. 101485
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 19, 2015
2015-Ohio-1022
E.T. Gallagher, J., E.A. Gallagher, P.J., and Laster Mays, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-13-577186-A
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 19, 2015
Allison S. Breneman
1220 West 6th Street, Suite 303
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Erin Stone
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Tina Evans (Evans), appeals the denial of her pretrial motions to suppress evidence and to disclose the identity of a confidential informant. Evans also appeals her sentence. She raises three assignments of error for our review:
- The trial court erred in denying defendant‘s motion to suppress.
- The trial court erred in denying defendant‘s motion to reveal the identity of the confidential informant and to require the state to reveal any agreement entered between the state and confidential informant.
- The trial court abused its discretion by imposing a prison sentence contrary to
R.C. 2929.14 and the purposes and principles of the felony sentencing guidelines.
We find no merit to the appeal and affirm.
I. Factual and Procedural History
{¶2} Evans was charged with two counts of drug trafficking, in violation of
{¶3} Prior to trial, Evans filed a motion to suppress evidence of the drugs found in her home pursuant to a search warrant, arguing that the affidavit presented to the judge for the warrant lacked probable cause. She also filed a motion to disclose the identity of a confidential informant (CI), who provided the factual basis for the search warrant.
{¶4} At a hearing on the motions, Detective John Lolly (Lolly), the affiant of the search warrant affidavit, testified to the facts alleged in the affidavit and to the search of Evans‘s home. Lolly received information from a CI that Evans was selling cocaine from her home located at 3553 Trent Avenue in Cleveland. The CI identified Evans‘s house as well as the make, model,
{¶5} After verifying this information, Lolly instructed the CI to telephone Evans to set up a “controlled buy.” During the call, which was monitored by police, the CI arranged to purchase cocaine from Evans at the corner of Fulton Road and Clark Avenue in Cleveland. Lolly searched the CI immediately before the buy to make sure he had no cocaine, contraband, or money. Detectives also provided the CI with an amount of United States currency, the serial numbers of which were recorded, to buy drugs from Evans.
{¶6} Detective Mitchell (Mitchell)1 subsequently transported the CI to the meeting location, where Detective Fairchild (Fairchild) was already parked in an undercover police vehicle. Detectives Mitchell and Fairchild watched the CI‘s actions as he purchased cocaine from Evans. Although detectives did not observe Evans leave her home prior to the sale, they observed her turn left onto Fulton Road from Trent Avenue and proceed to Clark Avenue, which is located approximately two blocks north of Trent.
{¶7} Mitchell and Fairchild continued to monitor the CI as he returned to Mitchell‘s undercover police vehicle after the transaction was complete. In accordance with police procedures, the detectives transported the CI to the Second District police station where they searched him and confirmed that he purchased cocaine from Evans. Meanwhile, other undercover officers followed Evans, who immediately returned to her home on Trent Avenue after the sale.
{¶9} Based on this evidence, the trial court denied Evans‘s motion to suppress. The court also denied Evans‘s motion to reveal the identity of the CI and the nature of any agreement the CI had with police. Evans subsequently pleaded no contest to all the counts in the indictment. The court merged Counts 1 and 2, and Counts 3 and 4, into two convictions instead of four. The court sentenced Evans to a nine-year prison term on Count 1, a first-degree felony trafficking charge, and a 24-month prison term on Count 3, a third-degree felony trafficking charge. The court imposed a 12-month prison term on Count 5, which alleged possession of criminal tools. The court ordered the prison terms to be served concurrently. Finally, the court imposed fines on Counts 6 through 8, which were misdemeanor child endangering charges.
II. Law and Analysis
A. Motion to Suppress
{¶10} In the first assignment of error, Evans argues the trial court erred in denying her motion to suppress evidence. She contends the search warrant affidavit lacked the probable cause required by the Ohio and United States constitutions for a lawful search.
{¶11} The Fourth Amendment to the U.S. Constitution and Article I, Section 14 of the Ohio Constitution prohibit the government from conducting unreasonable searches and seizures of persons or their property. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968);
{¶12} The warrant requirement is based on the “basic constitutional doctrine that individual freedom will best be preserved through a separation of powers * * * among the different branches and levels of the Government.” Arkansas v. Sanders, 442 U.S. 753, 759, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). A governmental search and seizure should represent both law enforcement‘s efforts to gather evidence of criminal activity and a magistrate‘s judgment “that the collected evidence is sufficient to justify invasion of a citizen‘s private premises.” Coolidge v. N.H., 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). By requiring a magistrate to make the probable cause determination instead of “the officer engaged in the often competitive enterprise of ferreting out crime,” the Fourth Amendment “minimizes the risk of unreasonable assertions of executive authority.” Sanders at 759.
{¶13} The test for probable cause it not amenable to any precise definition or quantification. It is “a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Gates at 232. “Probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Id. at 244.
{¶14} The magistrate issuing the search warrant must “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair
{¶15} The court reviewing the sufficiency of probable cause in a search warrant affidavit must determine whether the issuing judge or magistrate had a substantial basis to conclude that probable cause existed. George at paragraph two of the syllabus. “[T]rial and appellate courts should afford great deference to the magistrate‘s determination of probable cause, and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant.” Id.
{¶16} Evans argues the search warrant for her house lacked sufficient facts to support a probable cause finding because there was no evidence that contraband would be found inside her home. Evans contends that since the controlled buy occurred at an offsite location, and police never conducted surveillance on her house, there was no evidence that Evans possessed drugs in her home.
{¶17} Evan relies on State v. Gales, 143 Ohio App.3d 55, 757 N.E.2d 390 (8th Dist.2001), to support her argument. In Gales, this court found that an affidavit lacked a sufficient factual basis to justify the issuance of a search warrant to search the defendant‘s home, in part because there was no evidence connecting drug activity to the defendant‘s address. The police in that case obtained a search warrant after a confidential reliable informant (CRI) cooperated with police in two controlled buys of heroin.
{¶19} Both parties referred to the facts alleged in the affidavit during their direct and cross-examinations of the affiant who prepared it. However, the affidavit was not admitted into evidence and was not made part of the record. Under App.R. 12(A), we are limited to reviewing the parts of the record that are properly before us. Therefore, “[w]hen an affidavit filed in support of an application for a search warrant is not offered into evidence or otherwise preserved for appeal, we cannot review its substance.” State v. Alexander, 151 Ohio App.3d 590, 2003-Ohio-760, 784 N.E.2d 1225 (8th Dist.). We must therefore presume that the court‘s basis for finding probable cause to issue the search warrant was correct. Id.
{¶20} Nevertheless, our review of the evidence from the suppression hearing supports the trial court‘s finding of probable cause. According to Lolly‘s testimony, the CI told police that Evans was selling cocaine out of her home on Trent Avenue. The CI identified Evans‘s house and the vehicle she drove when she sold drugs. Although the CI had not previously provided accurate information to police and was not a “confidential reliable informant,” Detective Lolly independently investigated the CI‘s information and confirmed that the Jeep the CI had identified
{¶21} Unlike Gales, where an unidentified person made the sale, police observed Evans herself sell the cocaine to the CI. Police observed Evans turn off of her street and drive two blocks north to the meeting location at the time of the controlled buy. They also observed Evans return to her home immediately after the sale was complete. Under these circumstances, it is reasonable to conclude that Evans more likely than not kept the cocaine in her house. Police applied for, obtained, and executed the search warrant within 72 hours of the buy. In contrast to the facts involved in Gales, the search warrant affidavit in this case was not stale and demonstrated a fair probability that police would find cocaine in Evans‘s home. Therefore, the affidavit contained the necessary facts to support the magistrate‘s probable cause finding, and the trial court properly denied the motion to suppress.
{¶22} The first assignment of error is overruled.
B. Informant‘s Identity
{¶23} In the second assignment of error, Evans argues the trial court erred in denying her motion to reveal the identity of the CI and any agreement the CI had with police in exchange for his cooperation. She contends she needed to know the CI‘s identity in order to present an effective defense.
{¶24} An accused is entitled to disclosure of the identity of a CI when “the testimony of the CI is vital to establishing an element of the crime or would be helpful or beneficial to the accused in preparing or making a defense to criminal charges.” State v. Williams, 4 Ohio St.3d 74, 446 N.E.2d 779 (1983), syllabus; accord Roviaro v. United States, 353 U.S. 53, 60-62, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). However, the decision whether to order disclosure of an CI‘s
{¶25} The defendant bears the burden of establishing the need for disclosure. State v. Brown, 64 Ohio St.3d 649, 653, 597 N.E.2d 510 (1992). Generally, when the degree of the CI‘s participation is such that the CI virtually becomes the state‘s witness, the balance swings in favor of requiring disclosure of the CI‘s identity. Williams at 75. Conversely, where disclosure would not be helpful or beneficial to the accused, the identity of the CI need not be revealed. Id.
{¶26} Although the CI‘s identity must be disclosed when the CI‘s testimony is vital to the state‘s case or would be helpful in preparing a defense, the defendant must set forth more than mere speculation that “the informer might somehow be of some assistance in preparing the case.” State v. Parsons, 64 Ohio App.3d 63, 69, 580 N.E.2d 800 (4th Dist.1989). The trial court‘s judgment as to whether disclosure of an CI‘s identity is necessary will not be reversed on appeal absent an abuse of discretion. State v. McKoy, 8th Dist. Cuyahoga No. 93363, 2010-Ohio-522, ¶ 10.
{¶27} Here, the CI‘s testimony was not necessary to establish any of the elements of the offenses charged in the indictment. The CI‘s involvement in the case was limited to establishing the probable cause needed to obtain the search warrant. Moreover, Evans has not articulated how disclosure of the CI‘s identity would have assisted her defense. In her pretrial motion, she simply concluded without explanation that “the identity of the CI will be helpful and beneficial to
{¶28} Evans‘s motion to reveal any agreement between the state and the CI is also without merit. Evans would not have been entitled to knowledge of any agreement between the CI and police unless she was entitled to knowledge of the CI‘s identity. Moreover, the record suggests there was no agreement between police and the CI.
{¶29} Accordingly, the second assignment of error is overruled.
C. Sentencing
{¶30} In the third assignment of error, Evans argues the trial court abused its discretion by imposing a prison sentence that violates the purposes and principles of the felony sentencing guidelines set forth in
{¶31}
{¶32}
{¶33}
{¶34} Although the trial court must consider the sentencing guidelines outlined above when imposing a felony sentence, it is not required to use any particular language or make any specific findings on the record. State v. Brown, 8th Dist. Cuyahoga No. 100874, 2014-Ohio-4381, ¶ 10. The court‘s consideration of the criteria set forth in
{¶36} Accordingly, the third assignment of error is overruled.
III. Conclusion
{¶37} The trial court properly denied Evans‘s motion to suppress evidence where the affidavit for the search warrant provided probable cause for the search of her home. The trial court‘s judgment denying Evans‘s motion to reveal the identity of the CI was also appropriate because Evans failed to establish that knowledge of the CI‘s identity would have helped her defense. Finally, the sentence Evans received was lawful because it fell within the statutory range and the record demonstrated that the trial court complied with the requirements of
{¶38} Judgment affirmed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR