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)
ΟΡΙΝΙΟΝ
Rendered on the 11th day of September, 2015.
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 no-contest plea to one count of engaging in a pattern of corrupt activity.
{¶ 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
{¶ 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 part, the State asserts that the affidavit did establish probable cause. Alternatively, the State argues, as it did below, that the police acted in good fаith in relying on the warrant‘s validity. In his second assignment of error, McClain suggests that the good-faith exception does not apply because the detective‘s affidavit contained materially false statements or omissions, indicating a lack of objective reasonableness and a lack of good faith.1
{¶ 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).
{¶ 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 residence at 4508 Eichelberger Avenue and stay for about five or ten minutes. Later that month, Lovett was sеen exiting a residence where controlled drug purchases had taken place and he was seen driving a motorcycle to 4508 Eichelberger Avenue. According to the affidavit, the three controlled purchases of heroin directly from McClain were in September and October 2013. These transactions occurred in a parking lot on the east side of Dayton, in the area of North Gettysburg Avenue, and at a residence on Linnbrook Drive, which was several blocks from 4508 Eichelberger Avenue. On one of these three occasions, McClain was observed driving to 4508 Eichelberger Avenue immediately after the transaction.
{¶ 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
{¶ 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 affidavit is so lacking in indicia of рrobable cause as to make belief in its existence entirely unreasonable. Id.
{¶ 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 аctive arrest warrant at the time he was participating 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
* * * 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 оther things, watching and recording CI#2 executing several 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 apparently did omit his knowledge of CI#2 having some criminal record, we see no indication that Overholt intended to mislead the issuing judge or that he was reckless in that regard. Nor do we believe this particular omission was likely to mislead the issuing judge with regard to CI#2‘s credibility. We reach this conclusion for at least two reasons. First, we doubt whether the issuing judge would have been greatly surprised to learn that CI#2, a person with intimate knowledge of McClain‘s drug-trafficking activity who was participating in controlled buys, had a criminal record. Second, and more importantly, Overholt averred that he had corroborated some of the information CI#2 had provided by, as the trial court stated, observing multiple controlled buys with his own eyes. (Doc. #51 at 6). In light of this corroboration by Overholt himself, we doubt that knowledge of CI#2‘s criminal record would have had much impact on the issuing judge‘s credibility assessment.4
{¶ 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 Constitutiоn of the United States and the Statutory Law of the State of Ohio[.]” (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,
{¶ 20} Applying the foregoing standards, we see no violation of McClain‘s right to a speedy trial. He was arrested and charged by complaint on October 8, 2013. He remained in custody until October 11, 2013, when he posted bond. The charges were dismissed without prejudice on October 21, 2013, and the case was taken to a grand jury. Therefore, McClain was entitled to nine days of speedy-trial time under the triple-count provision for the three days he spent in jail. He was entitled to another 10 days for the time that passed before the charges were dismissed. As of October 21, 2013, the State had 251 days to bring McClain to trial.
{¶ 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
{¶ 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 21, 2014. (Doc. #31, 36). The trial court originally scheduled the first motion for an April 4, 2014 hearing. (Doc. # 18). McClain filed a motion to have that hearing continued. (Doc. #25). The trial court sustained the motion and continued the hearing until May 22, 2014. (Doc. #27). That hearing went forward as scheduled on all three suppression motions. (May 22, 2014 Suppression Tr.). At the conclusion of the hearing, McClain‘s counsel requested and received 21 days to file a post-hearing memorandum (even though the trial court indicated that it did not think briefing was nеcessary). (Id. at 93-94). McClain‘s counsel subsequently sought and received a one-week extension of time to file his memorandum. (Doc. #42, 43). Both parties filed their post-hearing memoranda on June 19, 2014. (Doc. #44, 45). The trial court overruled McClain‘s suppression motions 78 days later on September 5, 2014, (Doc. #51) which was 218 days after he filed the first suppression motion, which had been continued at the defense request, but only 107 days after the third suppression motion which was filed May 21, 2014.
{¶ 23} The 218 days for a ruling on the suppression motions was, however, chargeable to McClain for speedy-trial purposes. McClain does not disputе that filing a suppression motion typically tolls the running of time for speedy-trial purposes. City of Greenville v. Fortkamp, Darke No. 97-CA91449, 1998 WL 401175 (May 15, 1998), citing
{¶ 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 dеmonstrate that the trial court was unreasonable to take 78 days to render its decision. But even 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 memorаndum and the filing of the trial court‘s decision overruling McClain‘s motions, then 156 speedy-trial days remained as 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.
Copies mailed to:
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 betwеen Overholt‘s characterization of CI#2 in his affidavit and the trial court‘s characterization of 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, without 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.