State of Ohio, Plaintiff-Appellee, v. John D. Johnson, Defendant-Appellant.
No. 13AP-637 (C.P.C. No. 12CR-02-906)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
February 25, 2014
[Cite as State v. Johnson, 2014-Ohio-671.]
(REGULAR CALENDAR)
Rendered on February 25, 2014
Ron O‘Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.
Stuart A. Benis and William Lazarow, for appellant.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{1} Defendant-appellant, John D. Johnson (“appellant“), appeals from a judgment of the Franklin County Court of Common Pleas imposing a sentence of five years of imprisonment following his plea of no contest to the criminal charges on which he was indicted. Because we conclude that the trial court properly denied appellant‘s motion to suppress evidence obtained pursuant to a search warrant, we affirm.
{2} On the evening of July 23, 2011, Detective Jon Dillon of the Franklin County Sheriff‘s Department received a telephone call from an unknown individual, who indicated that appellant was storing narcotics in Unit B2 of the Car-Go Self Storage facility on Westerville Road. Based on the tip, Detective Dillon requested that Detective Thomas Lung, a canine handler with the Franklin County Sheriff‘s Department, perform a canine sniff test on the storage facility. On July 25, 2011, Detective Dillon, Detective Lung, and
{3} Detective Dillon prepared an affidavit in support of a search warrant attesting that a “reliable source” provided information about possible narcotics being stored by appellant at Unit B2 of the Car-Go Self Storage facility. The affidavit further attested that Detective Dillon, Detective Lung, and Corporal Coleman were admitted to the storage facility by its managers and obtained permission for the canine sniff test. The affidavit attested that the canine indicated the odor of narcotics at the bottom seam of the door for Unit B2. The affidavit attested that appellant arrived at the storage facility after the canine sniff test and admitted to Detective Lung that he had cocaine stored in Unit B2. Finally, the affidavit attested that appellant had several prior arrests, convictions and/or incarcerations for possession of drugs. Detective Dillon presented the affidavit and search warrant request to a Franklin County municipal judge, who granted the search warrant. Upon executing the warrant, deputies located cocaine inside a dresser drawer inside Unit B2.
{4} Appellant was indicted on one count of possession of crack cocaine with a firearm specification and one count of possession of cocaine with a firearm specification. Appellant moved to suppress the evidence obtained pursuant to the search warrant. Following a hearing, the trial court denied the motion to suppress. Appellant subsequently entered a no-contest plea on all charges, and the trial court sentenced him to a total of five years of imprisonment.
{5} Appellant appeals from the trial court‘s judgment, assigning a single error for this court‘s review:
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS EVIDENCE OBTAINED BY THE STATE DURING ITS
IMPROPER SEARCH AND SEIZURE OF ITEMS FROM DEFENDANT‘S STORAGE LOCKER, IN VIOLATION OF DEFENDANT‘S RIGHTS UNDER THE FOURTH AMENDMENT TO THE U.S. CONSTITUTION, AND SECTION 14, ARTICLE I OF THE OHIO CONSTITUTION.
{6} The Supreme Court of Ohio articulated the standard of review for a motion to suppress in State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372:
Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.
(Internal citations omitted.) Id. at ¶ 8. In this case, the trial court did not make any findings of fact. We apply a de novo standard in determining whether the trial court properly denied appellant‘s motion to suppress. Id. See also State v. McDowell, 10th Dist. No. 13AP-229, 2013-Ohio-5300, ¶ 14.
{7} The
{8} When determining whether an affidavit in support of a search warrant demonstrates probable cause, a magistrate must ” ‘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 (1989), paragraph one of
{9} Appellant argues that the affidavit upon which the search warrant was based failed to support a finding of probable cause because the affidavit indicated that the tip came from a “reliable source,” despite the fact that, at the time he received the tip, Detective Dillon did not know who the informant was and did not have any other evidence that the informant was reliable. Courts have identified three broad classes of informants: (1) the anonymous informant, (2) the known informant from the criminal world who has previously provided reliable tips, and (3) the identified citizen informant. Maumee v. Weisner, 87 Ohio St.3d 295, 300 (1999). The anonymous or unknown informant is generally seen as the least reliable of these sources, and information from an unknown informant usually requires independent police corroboration. Id., citing Alabama v. White, 496 U.S. 325, 329 (1990). Appellant argues that Detective Dillon‘s characterization of the informant as a “reliable source” was inaccurate because he had no prior contact with the informant, nor any evidence that the informant was truthful or reliable. At the suppression hearing, Detective Dillon testified that he did not know the person who gave the tip and that he had no way of knowing, at the time he took the call, whether the person was a reliable informant. The state argues that, because the informant provided specific information that included the name of the storage facility, the unit number, and appellant‘s name, and because Detective Dillon was able to confirm this information through subsequent investigation, the information could properly be characterized in the affidavit as reliable.
{10} “To successfully attack the veracity of a facially sufficient search warrant affidavit, a defendant must show by a preponderance of the evidence that the affiant made a false statement, either ‘intentionally, or with reckless disregard for the truth.’ ” State v. Waddy, 63 Ohio St.3d 424, 441 (1992), quoting Franks v. Delaware, 438 U.S. 154, 155-56 (1978), superseded by constitutional amendment on other grounds, as stated in State v. Smith, 80 Ohio St.3d 89, 102, fn.4 (1997). “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.’ ” Waddy at 441, quoting Franks at 156.
{11} This court has previously concluded that an affidavit may demonstrate probable cause even where it contains misinformation or misstatements. State v. Allen, 10th Dist. No. 08AP-264, 2008-Ohio-6916; State v. DeBlanco, 10th Dist. No. 89AP-1493 (July 30, 1991). In Allen, the police obtained a search warrant based on information provided by a confidential informant and a controlled drug purchase involving the informant, a middleman, and the defendant. Allen at ¶ 2-4. The trial court granted the defendant‘s motion to suppress, concluding, in part, that the affidavit did not vouch for the middleman‘s reliability and that the informant did not accompany the middleman into the apartment where the controlled buy allegedly occurred. Id. at ¶ 10. On appeal, this court reversed the trial court‘s judgment. The court conceded that the affidavit contained misinformation regarding whether the informant actually saw the defendant sell drugs to the middleman. Id. at ¶ 29. However, the court concluded that the affidavit contained sufficient information to establish probable cause that criminal activity was occurring at the location of the controlled buy, even without the assertion that the defendant sold drugs to the middleman. Id. at ¶ 30. The affidavit also included a misstatement about when the informant told the police that the middleman had seen drug activity at the location. Id. at ¶ 31. Once again, the court found that, even without the misstatement, the affidavit was sufficient to demonstrate probable cause that illegal drug activity was occurring at the location. Id. Based on these conclusions, the court held that the affidavit established probable cause and reversed the trial court‘s judgment suppressing the evidence obtained pursuant to the search warrant. Id. at ¶ 41.
{12} Similarly, in DeBlanco, an informant alerted a state agency that the defendant was fraudulently billing the state for allergy services to Medicaid patients. A state investigator prepared an affidavit in support of a search warrant asserting that the
{13} In this case, we need not reach the question of whether Detective Dillon‘s characterization of the unknown informant as a “reliable source” constituted a false statement because we conclude that, even without that characterization, the affidavit‘s remaining content was sufficient to establish probable cause. The affidavit attested that the drug-sniffing canine indicated that it detected the odor of narcotics at the bottom seam of the door for storage Unit B2. This was the same unit where the informant indicated the narcotics were being stored. Moreover, the affidavit indicated that, while Detective Lung remained on the premises, appellant arrived at the storage unit and, in response to questions, admitted that he had cocaine stored in storage Unit B2. Finally, the affidavit indicated that appellant‘s criminal history included several prior arrests and convictions for possession of drugs. Under these circumstances, we conclude that, even without the characterization of the informant as a “reliable source,” the remaining content of the affidavit was sufficient to establish probable cause.
{14} Appellant also argues that Detective Dillon failed to disclose in his affidavit “the fallibilities of canine sniff testing.” (Appellant‘s Brief, 10.) We acknowledge that some courts have held that an omission may be considered a false statement in an affidavit in support of a search warrant. See, e.g., State v. Berry, 8th Dist. No. 87493, 2007-Ohio-278, ¶ 37 (holding that omissions count as false statements if designed to mislead or made in reckless disregard of whether they would mislead the magistrate). There was testimony
{15} Finally, appellant argues that the state violated his right to privacy by performing the drug canine sniff test in the area outside his storage locker. In effect, appellant appears to argue that the state was required to obtain a search warrant before having the drug-sniffing canine sniff the area outside the storage locker. Appellant cites Florida v. Jardines, ___ U.S. ___, 133 S.Ct. 1409 (2013), recently decided by the United States Supreme Court. In Jardines, the Supreme Court held that the use of trained police dogs to investigate the home and its immediate surroundings constituted a search within the meaning of the
{16} Appellant admits that the reasoning in Jardines was based on property rights but urges this court to apply the concurring opinion of Justice Kagan, who asserted that the activity constituted a search because, in addition to invading Jardines’ property, the police also violated Jardines’ reasonable expectation of privacy in the area around his
{17} For the foregoing reasons, we overrule appellant‘s sole assignment of error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and O‘GRADY, JJ., concur.