State v. QuinnState v. Quinn
Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio 45044, for defendant-appellant
O P I N I O N
HENDRICKSON, J.
{¶ 1} Appellant, Chauncy Lavonn Quinn, appeals his conviction in the Butler County Court of Common Pleas for possession of marijuana and possession of cocaine. For the reasons stated below, we affirm the decision of the trial court.
{¶ 2} On December 9, 2010, Detective Sam Adams from the Special Operations Unit of the Middletown Police Department obtained a search warrant for 804 Elwood Street. The search warrant was based on two facts. First, Middletown Police Department had received
{¶ 3} Second, the search warrant was based on a “trash pull” conducted at 804 Elwood, where police officers inspected three garbage bags that had been discarded in an alley. The search warrant was issued within 72 hours after offices conducted the trash pull. During the trash pull, Detective Adams found “several torn baggies, marijuana cigarettes, loose marijuana, as well [as] a small baggie of marijuana.” Detective Adams also discovered saran wrapped packages, common in shape and size to the packaging of a kilogram of cocaine, which contained a substance that tested positive for cocaine or crack cocaine. Moreover, “[a] large saran wrapped package with tape around the outside was also located and found to have contained a large amount of [m]arijuana inside it.” Several documents that were addressed to Allen Starks of 804 Elwood Street were also found in the garbage.
{¶ 4} On December 13, 2010, Detective Adams and other Middletown police officers executed the search warrant. The search warrant contained a provision which allowed officers to search “all persons” in the residence. While police officers were performing the search, appellant approached the residence, climbed the steps, and opened the front screen door to the home. Appellant possessed a key, but the parties contest whether appellant used this key to gain entry. Detective Adams testified that appellant then saw the police officers, turned around, and ran. Appellant tripped coming off the front porch and Detective Adams made contact with him and secured him. Thereafter, a search was conducted where cocaine and marijuana were found on appellant‘s person.
{¶ 5} Appellant was indicted on two counts of possession of cocaine and one count
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ERRED IN OVERRULING THE MOTION TO SUPPRESS.
{¶ 8} Assignment of Error No. 2:
{¶ 9} IF THE SEARCH WARRANT WAS INVALID, WHETHER THE ARRESTING OFFICER POSSESSED PROBABLE CAUSE TO SEIZE AND SEARCH THE APPELLANT. [SIC]
{¶ 10} For ease of discussion, we will discuss appellant‘s first and second assignments of error together. In appellant‘s first assignment of error, he argues that the trial court erred when it denied his motion to suppress. Specifically, appellant contends, 1) the search of the garbage violated the Ohio Constitution; 2) the search warrant was not based on probable cause; 3) the “all persons” provision in the search warrant was invalid; and 4) the search warrant does not fall within the “good faith” exception.
{¶ 11} We begin by noting that appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Davenport, 12th Dist. No. CA2008-01-011, 2009-Ohio-557, ¶ 6; State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When considering a motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence in order to resolve factual questions and evaluate witness credibility. State v. Eyer, 12th Dist. No. CA2007-06-071, 2008-Ohio-1193, ¶ 8. In turn, the appellate court must accept the trial court‘s findings of fact so long as they are supported by
{¶ 12} The
I. Constitutionality of Trash Pull
{¶ 13} In appellant‘s first argument, he urges this court to find that the
{¶ 14} The United States Supreme Court has found that the protections of the
{¶ 15}
{¶ 16} We decline to extend the protections of the
{¶ 17} We also find the cases on which appellant relies in support of his argument unpersuasive. Although the courts in these cases expanded the constitutional protections for garbage, both courts applied their own respective state constitutions in reaching that decision. In State v. Hempele, 120 N.J. 182, 195, 576 A.2d 793 (1990), the New Jersey Supreme Court reasoned that a police officer must possess a warrant to conduct a trash pull. However, the New Jersey Supreme Court has a clear history of departing from the U.S. Supreme Court jurisprudence; it noted that the court had found on several occasions that the parallel provision in the New Jersey Constitution “affords our citizens greater protection against unreasonable searches and seizures than does the [F]ourth [A]mendment.” Id. Moreover, Litchfield v. State, 824 N.E.2d 356, 359 (Ind.2005), is also inapposite to this case because the Indiana Supreme Court uses a different test than the U.S. Supreme Court and the Ohio Supreme Court in determining whether a search is reasonable.1
{¶ 18} Thus, in light of the Ohio Supreme Court‘s reluctance to expand the
II. Probable Cause for Search Warrant
{¶ 19} In appellant‘s second issue, he argues that the evidence should be suppressed because the trash pull and complaints about drug activity contained in the affidavit did not establish probable cause for the issuance of the search warrant.
{¶ 20} As stated above, the
{¶ 21} When reviewing the decision to issue a warrant, neither a trial court nor an appellate court will conduct a de novo determination as to whether the affidavit provided sufficient probable cause. Cobb, 12th Dist. No. CA2007-06-153, 2008-Ohio-5210 at ¶ 24. Instead, a reviewing court need only ensure that the issuing judge had a substantial basis for
{¶ 22} The first paragraph of the affidavit which states that the Middletown Police Department has received complaints about drug activity at 804 Elwood, standing alone, is insufficient to establish probable cause to justify the issuance of the search warrant. Pursuant to
{¶ 23} We do, however, find that the remaining portion of the affidavit provided the necessary probable cause for the issuance of the warrant. As discussed above, Ohio recognizes that a trash pull of garbage voluntarily left out does not violate the Ohio
[t]he junk mail tied the contents of the trash bags to 1101 Noyes Avenue, and the existence of the marijuana remains provided probable cause to search the home for marijuana regardless of who lived there. This same information also provided partial corroboration of the information that the police had received indicating that Akers was involved in drug trafficking out of 1101 Noyes Avenue.
{¶ 24} Similarly, in this case, police found many illegal drugs in the trash, including marijuana cigarettes, loose marijuana, a large “saran” wrapped package that contained marijuana, and a large saran wrapped package that contained cocaine. Moreover, the affidavit stated that documents found in the garbage of 804 Elwood Street tied the garbage to the residence.
{¶ 25} We also note that several other districts have come to this conclusion as well. In State v. McGorty, 5th Dist. No. 2007-CA-00257, 2008-Ohio-2643, ¶ 16, the court reasoned that the search warrant was supported by probable cause even when the affidavit did not provide adequate information of the confidential informant‘s tip because a trash pull corroborated the informant‘s tip. See State v. Robinson, 7th Dist. No. 10-CO-37, 2011-Ohio-6639 (sufficient probable cause established when confidential source‘s information was stale and uncorroborated but trash pull showed illegal drug activity).
{¶ 26} Therefore, we find that the magistrate had a substantial basis for concluding
III. “All Persons” Provision in Search Warrant
{¶ 27} In appellant‘s third issue, he argues that the search warrant does not meet the criteria for an “all persons” warrant pursuant to State v. Kinney, 83 Ohio St.3d 85 (1998).
{¶ 28} In State v. Kinney, the Supreme Court of Ohio held that “all persons on the premises” warrants are valid and do not violate the
{¶ 29} In addition to probable cause, the court in Kinney also mandated a particularity requirement.
An “all persons” clause may still be carefully tailored to its justifications if probable cause to search exists against each individual who fits within the class of persons described in the warrant. The controlling inquiry is whether the requesting authority has shown probable cause that every individual on the subject premises will be in possession of, at the time of the search, evidence of the kind sought in the warrant. If such probable cause is shown, an “all persons” provision does not violate the particularity requirement of the Fourth Amendment.
{¶ 30} The court also stated “all persons” warrants are often appropriate in situations involving drug transactions. “Individuals who are present in a drug trafficking residence raise special concerns for law enforcement.” Id. at 90. “A drug trafficking residence often has more than one person on the premises * * * [m]ost occupants are armed and dangerous.” Id. “A search for illegal drugs is more likely to support a search of all persons than a search for
{¶ 31} Finally, the court noted that “we do not intend to make the process of determining the sufficiency of an affidavit a hypertechnical one. When an ‘all persons’ warrant is requested, determination of probable cause will still require practical common sense decision making by magistrates.” Id. at 95.
{¶ 32} We find that the affidavit presented probable cause for the magistrate to issue the “all persons” warrant. First, the affidavit detailed Detective Sam Allen‘s experience in investigating drug complaints and his knowledge of drug trafficking. Second, the affidavit also described a small private single family residence to be searched, requested the search to be completed at night, and noted that often weapons are used for protection by drug traffickers. As mentioned previously, the affidavit stated that the Middletown Police Department had received complaints that the residence was being used to store drugs for other persons and that a trash pull completed within the past 72 hours revealed several drug related items, including “saran” wrapped packages for both cocaine and marijuana which is a common way for large amounts of drugs to be packaged and distributed. We find this case similar to our decision in State v. McClendon, 12th Dist. No. CA2006-06-025, 2007-Ohio-1656, in which this court upheld an “all persons” warrant where a defendant was alleged to be making crack cocaine sales out of his house, the warrant requested a nighttime search, and police had completed two controlled buys from defendant. Similar to McClendon, drug trafficking was involved in this case which raises concerns that individuals are armed on the premises and that all individuals on the premises are involved in drug activity. Therefore, based on these facts and circumstances, the trial court did not err in denying the motion to suppress regarding the “all persons” provision in the search warrant.
{¶ 33} Because we have found that probable cause supported the magistrate‘s issuance of the search warrant and the “all persons” provision of the search warrant is valid, appellant‘s argument that the search warrant did not fall into the good faith exception is rendered moot. Moreover, appellant‘s second assignment of error is also rendered moot as we find the search warrant valid.
{¶ 34} Appellant‘s first and second assignments of error are overruled.
{¶ 35} Judgment affirmed.
POWELL, P.J., and RINGLAND, J., concur.