STATE OF OHIO v. JASON L. KOON
C.A. CASE NO. 26296
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
April 3, 2015
[Cite as State v. Koon, 2015-Ohio-1326.]
HALL, J.
T.C. NO. 13CR1439/1 (Criminаl appeal from Common Pleas Court)
O P I N I O N
Rendered on the 3rd day of April, 2015.
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MELISSA I. REDLIEN, Atty, Reg. No. 0091732, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
JAY A. ADAMS, Atty. Reg. No. 0072135, 36 N. Detroit Street, Suite 102, Xenia, Ohio 45385 Attorney for Defendant-Appellant
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HALL, J.
{¶ 1} Jason L. Koon appeals from his conviction and sentence following a no-contest plea to charges of illegal cultivation of marijuana, endangering children, and possession of criminal tools.
{¶ 2} In his sоle assignment of error, Koon challenges the trial court’s denial of his
{¶ 3} The charges against Koon stemmed from the Kettering Police Department’s investigation of a suspected marijuana “grow” operation being conducted inside his residence. Suppression-hearing testimony reflects that the investigation began after poliсe received a complaint about illegal dumping at a nearby apartment complex. In a dumpster at that complex, police found trash bearing Koon’s name and addressed to him at 1500 Sacramento Avenue. The trash included a large shipping box for a “hydro grow light.” (Suppression Tr. at 6). Police learned that Koon shared the residence at 1500 Sacramento Avenue with Molly Anderson. (Id. at 7). An officer then drovе past the residence, saw several people standing on the porch, and smelled marijuana from his cruiser. (Id. at 7-8). Approximately one week later, police subpoenaed DP&L bills for 1500 Sacramento Avenue and two other comparable houses. (Id. at 10). The bills showed that electricity use at 1500 Sacramento Avenue was “extremely elevated” relative to the other two houses. (Id. at 11). Specificаlly, the electricity usage at 1500 Sacramento Avenue averaged approximately three times more than at the other locations. (Id. at 37).
{¶ 4} Two weeks after receiving the first illegal-dumping complaint, police received another such complaint. Officers responded to the same apartment complex and looked inside a dumpster. They saw bags of trash containing mail addressed to Koon аnd Anderson at 1500 Sacramento Avenue. Inside those bags, they saw marijuana stems, leaves, and “hydroponic fertilizer stuff.” (Id. at 12-13). After collecting this evidence, police commenced surveillance on 1500 Sacramento Avenue and began drafting a search-warrant affidavit. (Id. at 14). Before completing the affidavit and seeking a warrant, however, Detective Kevin McGuire and another detective approaсhed 1500 Sacramento
She said—you know, asked me if I was joking and kind of was upset and started walking in towards the house; “I’ve got to pee. I’ve got to pee.” And she said, “Just come in with me. You can come in with me,” or something to that nature. I followed her. She opened up the front door of the house. I could smell the marijuana odor immediately. I started to follow her inside, and she went to the hallway bathroom with the door open and went to the bathroom.
When she walked inside, she yelled down towards the—I guess, to the basement, “The detectives are effing hеre and they’re effing here; I’m not joking,” or something along that—those lines and let them—let whoever was in the basement know that we were there.
(Id.).
{¶ 5} Koon then came upstairs from the basement and stepped outside with
We knew that there was a grow operation in the house. All evidence led to that. There was the possibility of the destruction of evidence if there was somebody else in the house, but the most important thing was that there was a possibility that we would be endangering other officеrs bringing them to the scene without clearing the house and making sure that nobody else was there that could harm any of the officers on the scene.
(Id. at 17-18).
{¶ 6} When asked specifically whether there was any particular reason why he thought more people might be inside the house, McGuire stated:
Obviously, there’s cars lined up and down the street. This is an area of a park. It’s right next door to a park, so there’s—there’s often cаrs parked all around in the area of the house and everything, and we weren’t sure who was in the house, who was in the basement or any other area of the house where I had not been. Based on the fact that there was a grow operation in
the basement, typically, * * * anytime there is a grow operation, you know, it’s typically—excuse me. It’s—my experience is that it involves more than one person to take care of the plants as well as the amount of product that they get typically is distributed, so there is people involved in and out of a house that has a grow operation.
(Id. at 19-20).
{¶ 7} When questioned further regarding his concern about someone else being in the house, McGuire added:
Well, the officer’s safety is the first and the most important concern that we had. Officer safety, and second would be the destruction of evidеnce. They know we’re there already. She’s announced it to use—to the house. “You know, detectives are here. The detectives are here. I’m not effing kidding.”
So at that point, we were exposed, and anybody we brought to the scene was our responsibility, you know. We’re bringing them to the scene knowing that we’ve been exposed and they know that we’re there.
(Id. at 20).
{¶ 8} While performing the protective sweep, McGuire аnd two other officers observed (1) “High Times” marijuana-grow magazines in a bedroom closet, (2) marijuana in a hallway closet, (3) soil and a “sifting screen” in an upstairs closet, (4) a marijuana potted plant and a bag of soil at the bottom of the basement stairs, (5) several marijuana plants, grow lights, and a watering system in another room, (6) a grow light with large marijuana plants in a bathroom, (7) a table with a pile of marijuana buds, and (8)
{¶ 9} After completing the sweep, McGuire posted officers at the front and rear of the house to await a search warrant. (Id. at 24). Although no evidence was removed from the house during the sweep, evidence observed inside during the sweep was mentioned in a warrant affidavit. (Id. at 25, 50). Police obtained the warrant and executed it that same day. (Id. at 25). They recovered marijuana and related evidence that was the subject of a suppression motion.
{¶ 10} Based on testimony presented at the suppression hearing, the trial court declined to suppress the evidence. It reasoned that a protective sweep was justified after Anderson announced the detectives’ presence to an unknown number of people inside the home. Therefore, the trial court found that McGuire and the other officers lawfully were inside when they saw the marijuana and other evidence. (Doc. #44 at 2). Following the trial court’s ruling, Koon pled no contest to the charges set forth above. The trial court found him guilty and imposed a community-control sanctiоn. (Doc. #54).
{¶ 11} On appeal, Koon contends a protective sweep was impermissible because police lacked reasonable, articulable suspicion that his house harbored one or more individuals who posed a danger to them. He also asserts that suppression of the evidence could not be avoided (1) based on an “inevitable discovery” theory or (2) by excising from McGuire’s warrant affidаvit all statements about evidence seen inside his house. Koon contends these approaches are precluded by State v. Sharpe, 174 Ohio App.3d 498, 2008-Ohio-267, 882 N.E.2d 960 (2d Dist.). Finally, Koon claims statements he made to
{¶ 12} For its part, the State maintains that the protective sweep was lawful. The State also argues that Sharpe is distinguishable and that even without reference tо evidence seen during the sweep, McGuire’s affidavit established probable cause. The State additionally asserts that Koon’s statements to police were admissible.
{¶ 13} “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 fаctual questions and evaluate the credibility of witnesses.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “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 applicаble legal standard.” Id.
{¶ 14} Here we see no meaningful dispute about the facts set forth above. The initial issue raised by Koon’s assignment of error is whether those facts justified a protective sweep of his house. A “protective sweep” involves “a cursory inspection of those areas whether a person who possesses a threat of danger to the police may be found.” State v. Young, 2d Dist. Montgomery No. 24537, 2011-Ohio-4875, ¶ 17. Although a protective sweеp of a residence often occurs following a suspect’s arrest, it also may occur when a suspect merely has been detained. Id. at ¶ 22. In either situation, however, a warrantless sweep is permitted only when ” ‘articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in
{¶ 15} In arguing that a protective sweep was impermissible, Koon contends his case is analogous to Sharpe. Police arrived at the defendant’s residence in Sharpe to serve him with an arrest warrant for domestic violence involving his girlfriend. Police had reason to believe the defendant was armed, and an hours-long standoff ensued. The defendant eventually vacated the residence and was taken into custody. No weapon was found on him. Officers then performed a “protective sweep” of the residence to check for a firearm and other individuals that may have been involved or may have been inside. This court found the sweep unlawful, noting the absence of any “positive indication” that anyone else remained in the residence that might pose a danger. Sharpe at ¶ 46. This court reasoned: “Mere suspicion that a weapon remains inside is insufficient. Likewise, not knowing whether anyone else is there is an insufficient pretext because the need for protection necessarily implies that another person or persons are there. Faced with such doubts, and absent any reason to believe that other persons may bе inside, officers must obtain a warrant before they conduct a search of a defendant’s house after a defendant’s arrest there.” Id.
{¶ 17} Upon review, we do not need to decide the protective-sweep issue. We see no error in the trial court’s suppression ruling, even assuming arguendo that the sweep was unjustified. Notably, the subsequent search of Koon’s home was conducted with a warrant issued by a judge. Only the last paragraph of Detective McGuire’s affidavit in support of the warrant mentioned drug-related evidence seen inside the home during the sweep. If we excise that paragraph, the affidavit still contains sufficient untainted evidence to establish probable cause for a warrant. After setting forth his experience and qualifications, McGuire averred: (1) that a box addressed to Koon at 1500 Sacramento Avenue for a light fixture of the type used in marijuana grow operations was found in a nearby dumpster; (2) that utility records showed the electricity usage at 1500 Sacramento Avenue averaged three times higher than at two other houses of comparable size and utility configuration; (3) that police subsequently found trash bags in the same nearby
{¶ 18} In our view, the foregoing averments—which do not include the final paragraph of McGuire’s affidavit detailing what police saw inside the home during the protective sweep—establish probable cause to believe a marijuana grow operation was being conducted inside 1500 Sacramento Avenue. “The U.S. Supreme Court * * * has held that, after excising tainted information frоm a supporting affidavit, ‘if sufficient untainted evidence was presented in the warrant affidavit to establish probable cause, the warrant was nevertheless valid.’ ” State v. Bell, 2d Dist. Greene No. 2012 CA 15, 2012-Ohio-4853, ¶ 14, quoting United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). 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.’ ” Id., quoting State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 17.2 See also State v. Booker, 2d Dist. Montgоmery No. 11255, 1989 WL 140201, *4 (Nov. 20, 1989) (recognizing that “[i]f sufficient untainted evidence is present in the warrant affidavit to establish probable cause, the warrant is
{¶ 19} Here the officers’ observations during the protective sweep were not critical to the existence of probable cause. Because McGuire’s affidavit establishes probable cause without considering anything observed during the sweep, we see no error in the denial of Koon’s suppression motion even if the sweep was unlawful. In reaching this conclusion, we reject Koon’s argument that Sharpe precludes determining whether probable cause exists after excising challenged evidence from an affidavit. In Sharpe, police conducted an unlawful protective sweep based on their belief that a firearm remained inside the defendant’s home after his arrest. During the sweep, they discоvered drugs in the home. Immediately after the sweep, police obtained a search warrant. The drugs seen during the unlawful sweep provided “the basis for probable cause to obtain the warrant[.]” Sharpe at ¶ 31. Because the information establishing probable cause was illegally obtained, the warrant was irreparably tainted, and the evidence seized was subject to suppression. Id. at ¶ 65.
{¶ 20} In Sharpe, this court rejected an argument that рolice could have obtained a warrant, prior to the protective sweep, based on probable cause to believe a firearm was inside the defendant’s home. The State argued that upon executing such a warrant police would have found the drugs and, therefore, that the drugs were admissible under the inevitable-discovery doctrine. This court disagreed, reasoning:
A legitimate, alternative line of invеstigation that would inevitably have resulted in the same evidence being discovered is necessary in order to apply the inevitable discovery rule. * * * In the present case, police were not actively pursuing any alternative line of investigation when they entered
Sharpe’s residence and discovered drugs. That the officers then had probable cause is subject to dispute. However, in any event, an illegal search conducted without a warrant, even when probable cause exists, is still illegal.
(Citations omitted.) Id. at ¶ 63.
{¶ 21} The most significant distinction between Koon’s case and Sharpe is that Detective McGuire’s affidavit established probable cause even without consideration of evidence seen during the protective sweep. In contrast, the affidavit in Sharpe depended on evidence observed during the warrantless sweep to establish probable cause. Sеe Sharpe at ¶ 31, 65. That being so, the State in Sharpe did not raise the issue before us, namely whether observations during an allegedly unlawful protective sweep can be excised from a warrant affidavit. Instead, the State argued inevitable discovery based on a theory that police could have obtained a warrant to retrieve a gun in the house and, upon doing so, would have seen the drugs. Because Sharpe did not address the issue we face, it does not confliсt with our analysis herein.3
{¶ 22} Based on the reasoning set forth above, we see no error in the trial court’s denial of Koon’s suppression motion even assuming arguendo that the challenged protective sweep was unlawful. The assignment of error is overruled, and the judgment of
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FAIN, J. and WELBAUM, J., concur.
Copies mailed to:
Melissa I. Redlien
Jay A. Adams
Hon. Gregory F. Singer