STATE OF OHIO v. STEPHEN MCCLAIN
Appellate Case No. 26602
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
September 11, 2015
[Cite as State v. McClain, 2015-Ohio-3690.]
Trial Court Case No. 2013-CR-3942/4 (Criminal Appeal from Common Pleas Court)
Rendered on the 11th day of September, 2015.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee
DANIEL J. O‘BRIEN, Atty. Reg. No. 0031461, 131 North Ludlow Street, Talbot Tower, Suite 1210, Dayton, Ohio 45402 Attorney for Defendant-Appellant
HALL, J.
{¶ 1} Stephen McClain appeals from his conviction and sentence following a
{¶ 2} McClain advances three assignments of error. First, he contends the trial court erred in finding that a search-warrant affidavit established probable cause. Second, he claims the trial court erred in failing to find that the affidavit contained materially false statements or omissions. Third, he argues that the trial court erred in failing to find a violation of his right to a speedy trial.
{¶ 3} The record reflects that McClain was indicted in January 2014 on three counts of heroin trafficking, three counts of having weapons while under disability, and one count of engaging in a pattern of corrupt activity. The charges stemmed from evidence obtained when police executed search warrants at various locations, including McClain‘s homе. After his indictment, McClain filed various motions, including suppression motions and a motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Following a hearing on the motions, the trial court found no basis to suppress the evidence. The parties subsequently entered into a plea agreement under which McClain pled no contest to the corrupt-activity charge in exchange for dismissal of the other charges. The trial court accepted the plea, found him guilty, and imposed a four-year prison sentence, which it stayed pending appeal.
{¶ 4} As a means of analysis, we will address McClain‘s first two assignments of error together because they both address the issue of whether the trial court‘s judgment overruling the motion to suppress was correct. In the first assignment of error, McClain challenges the sufficiency of an affidavit for a warrant to search his residence at 4508 Eichelberger Avenue, where drugs were found. He contends the affidavit failed to establish probable cause to believe contraband would be located inside the home. For its
{¶ 5} We begin our analysis with the governing legal standards. Under
{¶ 6} The appellate standard under which a probable-cause finding is reviewed is deferential:
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 warrant. 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 be resolved in favor of upholding the warrant.
State v. George, at paragraph two of the syllabus.
{¶ 7} “Ordinarily, ‘a probable cause inquiry must be confined to the four corners of the affidavit * * *.‘” State v. Leibold, 2d Dist. Montgomery No. 25124, 2013-Ohio-1371, ¶ 31, quoting State v. Klosterman, 114 Ohio App.3d 327, 333, 683 N.E.2d 100 (2d Dist.1996). But “[a] search warrant affidavit that is facially sufficient may nevertheless be successfully attacked if the defendant can show by a preponderance of the evidence that the affiant made a false statement intentionally, or with reckless disregard for the truth.” Id., quoting State v. Stropkaj, 2d Dist. Montgomery No. 18712, 2001 WL 1468905, *2 (Nov. 16, 2001), citing Franks at 155-156 and State v. Waddy, 63 Ohio St.3d 424, 441, 588 N.E.2d 819 (1992). “Omissions count as false statements if ‘designed to mislead, or * * * made in reckless disregard of whether they would mislead, the magistrate.‘” (Citations omitted.) State v. Miser, 2d Dist. Montgomery No. 25105, 2013-Ohio-1583, ¶ 12. “[A]n omitted fact in an affidavit for a search warrant, in order to be considered intentionally misleading or made with reckless disregard of its tendency to mislead the magistrate, would necessarily have to be exculpatory information, or information that impeaches a source of incriminating information.” Stropkaj at *3.
{¶ 8} Here the affidavit at issue was sworn to by Detective Matt Overholt.2 (See affidavit attached to Appellant‘s April 30, 2015 brief, identified as State‘s Exhibit 5 during the suppression hearing below). The affidavit covered nine single-spaced pages and provided information about a wide range of drug activity involving several people between
{¶ 9} The essence of Overholt‘s affidavit was that McClain headed up a heroin-trafficking operation in the Dayton area. He periodically travelled to Chicago to buy heroin from suppliers. He then transported it to Dayton and primarily used others to sell it, either themselves or through their own “runners.” The affidavit identified some of these sellers by name. It also detailed eleven controlled buys made by CI#1 and CI#2, three of which were directly from Stephen McClain, in the six months before issuance of the warrant. The transactions took place at various specified locations, none of which included McClain‘s residence at 4508 Eichelberger Avenue.
{¶ 10} With regard to McClain, Overholt averred that in July 2013 CS#1 reported previously having seen six ounces of heroin in McClain‘s car. CS#1 purportedly had purchased heroin from McClain approximately 30 times, although the affidavit did not specify when or where. In August 2013, CI#2 reported that McClain was preparing to make another trip to Chicago to purchase heroin. Also in August 2013, another investigating officer saw one of the heroin sellers, Clifford Lovett, visit McClain‘s
{¶ 11} In our view, Overholt‘s affidavit undoubtedly established probable cause to believe that McClain played a key role in a local heroin-trafficking operation. Having examined the affidavit, however, we conclude the affidavit does not provide a “substantial basis” for finding a fair probability that evidence of drug trafficking would be found inside McClain‘s home at 4508 Eichelberger. On this issue, Overholt‘s affidavit was weak. It did not present much of a connection between the documented drug trafficking activity and 4508 Eichelberger Avenue, other than that was where McClain lived. None of the transactions occurred there, no drugs were reported being seen there, and, other than Stephen McClain driving home to 4508 Eichelberger after the September 16, 2013 drug sale, there was no report of trips to or from the residence by any of the various runners in relation to any of the drug buys. Under similar circumstances we have previously determined that a search warrant does not establish probable cause. Cf. State v. Perez, 2015-Ohio-1753, 32 N.E.3d 1010 (2d Dist.) (finding no probable cause for a search warrant where a supporting affidavit failed to establish a sufficient nexus between the
{¶ 12} Lack of probable cause in the affidavit for the search warrant does not end the inquiry. Regardless of whether the warrant provided a fair probability drugs would be found at McClain‘s residence, we agree with the State‘s alternative argument that the good-faith exception applies. “The exception provides that the exclusionary rule should not be applied to bar use of evidence obtained by officers acting in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.” State v. Hoffman, 141 Ohio St. 3d 428, 2014-Ohio-4795, 25 N.E.3d 993, ¶ 29. “The rationale for the good faith exception to suppression is that the exclusionary rule is designed to deter unlawful police behavior, and the deterrence goal is not advanced when the police objectively and in good faith rely upon a judge‘s probable cause determination.” State v. Cole, 2d Dist. Montgomery No. 23058, 2009-Ohio-6131, ¶ 30. Because the good-faith exception requires “objectively reasonable reliance” on a warrant, the exception will not apply if officers knowingly mislead the issuing judge by making false statements or omitting important information from the affidavit. Hoffman, at ¶ 32, citing Franks. The exception also will not apply if an
{¶ 13} McClain argued below, and asserts in his second assignment of error, that Overholt‘s affidavit “contained materially false statements and/or omissions which deprived the issuing judge of the true facts with which to independently assess and verify the informant‘s credibility or lack thereof[.]”3 Specifically, McClain contends on appeal that Overholt‘s affidavit failed to vouch for CI#2‘s credibility and omitted information about CI#2, who was identified at the suppression hearing and testified there, having an extensive criminal record and having an active arrest warrant at the time he was pаrticipating in the controlled buys. (Appellant‘s April 30, 2015 brief at 15-16). McClain reasons that these omitted facts negatively would have impacted CI#2‘s credibility in the eyes of the issuing judge.
{¶ 14} Following the suppression hearing, the trial court saw no grounds for suppressing the evidence found inside 4508 Eichelberger Avenue on the basis of a Franks violation. In particular, the trial court found no evidence of any material misrepresentations in Overholt‘s affidavit. Quoting that affidavit, the trial court also stated:
* * * Further, Det. Overholt had no reason to question the reliability of [CI#2], who was “considered reliable * * * as [the drug task force] ha[d] been able to verify * * * information provided by [CI#2] through independent investigation,” including Det. Overholt personally witnessing multiple controlled buys with his own eyes. Thus, even if the warrants and orders
were not issued on sufficient probable cause, Det. Overholt had a legitimate good faith belief in their validity.
(Footnotes omitted, emphasis in original.) (Doc. #51 at 6).
{¶ 15} We see no error in the trial court‘s ruling. As noted by the trial court, Overholt‘s affidavit did address the credibility of CI#2. It stated that Overholt considered CI#2 reliable because the information he had provided was verified by independent police investigation. Other portions of the affidavit indicate that the referenced independent investigation included, among other things, watching and recording CI#2 executing severаl controlled drug buys. With regard to the Franks issue McClain raises, CI#2 testified at the suppression hearing that he had an extensive criminal record and that he had a warrant for his arrest when he made the controlled buys (which he claimed to have made from people other than the McClain brothers). Overholt also testified at the suppression hearing. He refuted CI#2‘s testimony about not making controlled buys from the McClain brothers. Overholt admitted knowing that CI#2 was on parole or some type of supervision at the time but denied knowing anything about him having an active warrant for his arrest. Overholt also admitted knowing that CI#2 had “prior convictions” but declined to characterize his criminal history as “extensive” without having that criminal history in front of him. In its ruling, the trial court found Overholt‘s testimony credible and CI#2‘s testimony not credible to the extent that their testimony conflicted. (Doc. #51 at fn. 1).
{¶ 16} Because Overholt credibly testified that he had no knowledge of CI#2 having an active arrest warrant, his failure to mention that alleged fact in his affidavit cannot be considered intentionally or recklessly misleading. Although Overholt
{¶ 17} Finally, we note that the content of Overholt‘s affidavit was not so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. As set forth above, the nine-page, single-spaced affidavit detailed a wide range of drug-trafficking activity involving McClain and others at various locations. Although we found scant evidence directly linking 4508 Eichelberger Avenue to this drug-trafficking activity, it was objectively reasonable fоr Overholt to rely in good faith on the issuing judge‘s probable-cause determination. As a result, the trial court correctly found the good-faith exception applicable. Therefore, we find no basis for reversal regardless of an arguable lack of probable cause. McClain‘s first and second assignments of error are
{¶ 18} In his third assignment of error, McClain argues that the trial court erred in failing to find a violation of his right to a speedy trial.5 Specifically, he claims a denial of “his right to a speedy trial under the Ohio Constitution, the Constitution of the United States and the Statutory Law of the State of Ohiо[.]” (Appellant‘s June 30, 2015 supplemental brief at 2).
{¶ 19} The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution. Ohio‘s speedy trial statutes,
{¶ 21} Following his indictment, McClain was arrested again on January 15, 2014. He posted bond the following day, entitling him to three days of speedy-trial time under the triple-count provision. As of January 16, 2014, the State had 248 days to bring McClain to trial. Fourteen days then passed before McClain filed the first of three suppression motions in this case on January 30, 2014. As of January 30, 2014, the State had 234 days to bring him to trial. The critical issue for purposes of McClain‘s speedy-trial argument is how much speedy-trial time was tolled between January 30, 2014, when he filed the first of his three suppression motions, and September 5, 2014, when the trial court overruled the motions. After the trial court overruled the motions, an additional 121 days passed before McClain entered his no-contest plea, leaving 113 speedy-trial days available. Consequently, if less than 113 speedy-trial days were chargeable to the State between January 30, 2014 and September 5, 2014, McClain‘s right to a speedy trial was not violated.
{¶ 22} As we have noted, McClain filed his first suppression motion on January 30, 2014. (Doc. #16). He filed the additional suppression motions on April 30, 2014 and May
{¶ 23} The 218 days for a ruling on the suppression motions was, however, chargeable to McClain for speedy-trial purposes. McClain does not dispute that filing a suppression motion typically tolls the running of time fоr speedy-trial purposes. City of Greenville v. Fortkamp, Darke No. 97-CA91449, 1998 WL 401175 (May 15, 1998), citing
{¶ 24} We find McClain‘s argument unpersuasive for at least three reasons. First, he never asserted in his one-paragraph, boilerplate speedy-trial motion (Doc. #61) that the trial‘s court‘s delay in ruling on his motions was unreasonable and should not toll speedy-trial time. Therefore, he at least arguably failed to preserve the issue for appellate review. See State v. Reck, 2d Dist. Darke No. 1352, 1994 WL 718230, *9 (Dec. 21, 1994) (“Reck did not allege in his January 16 motion for dismissal, nor in any other motion, that the four months the court took to decide his suppression motion was unreasonable or should not extend his speedy trial time. That issue has consequently been waived for appeal.“). If McClain had complained about the delay below, perhaps the trial court could have explained it or hastened its decision. Second, McClain cites State v. Staffin, 4th Dist., Ross No. 07CA2967, 2008-Ohio-338, for the proposition that tolling of speedy trial time during motion practiсe must be reasonable. But in Staffin, a motion to suppress statements made by the defendant which did not involve “any uncommon or unusually complex legal issues,” Id. ¶ 17, took 364 days decide and all of the delay was the
{¶ 25} The trial court overruled McClain‘s suppression motions on September 5, 2014, which was 78 days after he filed his post-hearing memorandum. Contrary to McClain‘s argument, we see nothing in the record to demonstrate that the trial court was unreasonable to take 78 days to render its decision. But evеn if we were to conclude otherwise and were to count the entire 78 days against the State, there would be no speedy-trial violation. As we explained above, as of January 30, 2014, the State had 234 days to bring McClain to trial. Based on the foregoing analysis, speedy-trial time undoubtedly was tolled from January 30, 2014, when McClain filed the first of his three suppression motions, until June 19, 2014, when McClain filed his post-hearing memorandum. If we accept, purely arguendo, that 78 speedy-trial days elapsed between the filing of that memorandum and the filing of the trial court‘s decision overruling McClain‘s motions, then 156 speedy-trial days remained аs of September 5, 2014. After the trial court overruled the motions, 121 days elapsed before McClain entered his no-contest plea. If we subtract these 121 days from the 156 days available, the State still had 35 speedy-trial days remaining when McClain entered his plea. Therefore, his argument about the trial court‘s delay in ruling on his motions is unpersuasive. The third assignment of error is overruled.
{¶ 26} The judgment of the Montgomery County Common Pleas Court is affirmed.
FROELICH, P.J., and DONOVAN, J., concur.
Mathias H. Heck
Andrew T. French
Daniel J. O‘Brien
Hon. Steven K. Dankof
Notes
(Appellant‘s June 30, 2015 brief at 6). Having reviewed the record, we see nothing troubling about the difference between Overholt‘s characterization of CI#2 in his affidavit and the trial court‘s characterization оf CI#2‘s hearing testimony. Overholt averred that CI#2 was reliable and credible based on the detective‘s interaction with the informant and his ability to corroborate some of the informant‘s information. The trial court subsequently found CI#2 not credible at the suppression hearing when, among other things, he denied having made any controlled purchases of heroin from McClain. A simple way to reconcile these divergent perceptions of CI#2, of course, is to conclude that he was being truthful with Overholt and that he was lying in court in the presence of McClain.For the trial court to find, withоut foundation, in its Decision-Order that [CI#2] was utterly unreliable, after Mr. Overholt, from the Grandview Hospital Police Department, told the magistrate that [CI#2] was reliable, based on all the information in this record, including [CI#2‘s] sworn testimony at the hearing, under penalty of perjury, is to vitiate the definition of “reliable” as it has been commonly understood for the last past millennia and is “jiggery-pokery” use of the English language.