State v. ScottState v. Scott
Ted Coulter for Appellant
Nathan R. Heiser for Appellee
{¶1} Defendant-appellant, Jeremy Scott (“Scott“), appeals the January 21, 2020 judgment of sentence of the Marion County Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} On February 28, 2019, Deputy Jesse Allen (“Deputy Allen“) of the Marion County Sheriff‘s Office requested a warrant to use a thermal-imaging device to scan a residence located at 552 Pearl Street, Marion, Ohio. In the affidavit supporting his request for the search warrant, Deputy Allen stated that, based on years of tips regarding Scott‘s involvement in marijuana cultivation, a trash pull, subpoenaed records of electricity usage at 552 Pearl Street, and other information, he had probable cause to believe that Scott was running a marijuana growing operation out of 552 Pearl Street and another residence, 354 Chestnut Street, Marion, Ohio. Deputy Allen‘s request for a search warrant was granted, and on the night of March 1, 2019, 552 Pearl Street was scanned with a helicopter-mounted thermal-imaging device. With the results of the thermal-imaging scan in hand, on March 6, 2019, Deputy Allen requested warrants to search 552 Pearl Street and 354 Chestnut Street. The search warrants were granted, and on March 7, 2019, 552 Pearl Street and 354 Chestnut Street were searched. The two searches yielded nearly 200 marijuana plants, significant quantities of harvested and processed marijuana, and growing equipment, including 20 grow lights and 10 electrical ballasts.
{¶4} On April 29, 2019, Scott filed a motion to suppress evidence. (Doc. No. 14). On May 8, 2019, the State filed a memorandum in opposition to Scott‘s motion to suppress evidence. (Doc. No. 18). On August 23, 2019, Scott filed an amended motion to suppress evidence. (Doc. No. 42).
{¶5} The hearing on Scott‘s suppression motions was held over two separate days in August and September 2019. (See Aug. 30, 2019 Tr. at 7); (Sept. 26, 2019 Tr. at 7). At the suppression hearing, Scott‘s primary argument for suppression was that in the affidavits used to secure the three search warrants, Deputy Allen knowingly and intentionally included false or inaccurate statements or included such statements with reckless disregard for their truth or inaccuracy. He maintained
{¶6} On December 3, 2019, pursuant to a negotiated plea agreement, Scott pleaded no contest to Count One of the indictment. (Doc. No. 93). In exchange, the State agreed to recommend dismissal of Counts Two and Three of the indictment. (Id.). The trial court accepted Scott‘s no contest plea and found him guilty. (Doc. No. 100). In addition, the trial court dismissed Counts Two and Three of the indictment. (Id.).
{¶7} On January 17, 2020, the trial court sentenced Scott to four years in prison. (Id.). The trial court filed its judgment entry of sentence on January 21, 2020. (Id.).
{¶8} On February 19, 2020, Scott filed a notice of appeal. (Doc. No. 105). He raises three assignments of error for our review, which we address together.
Trial court erred as a matter of law, abused its discretion and erred against the weight of the evidence when finding defendant-appellant failed to prove by a preponderance of evidence that false statements or inaccurate statements were made knowingly or with a reckless disregard for truth in order to acquire a search warrant to conduct a fly over thermal imaging test over a residence that the defendant-appellant was allegedly using at 552 Pearl Street, Marion, Ohio.
Assignment of Error No. II
Trial court erred as a matter of law, abused its discretion and erred against the weight of the evidence when finding defendant-appellant failed to prove by a preponderance of evidence that false statements or inaccurate statements were made knowingly or with a reckless disregard for truth in order to acquire a search warrant for a residence known as 354 Chestnut Street, Marion, Ohio that the defendant-appellant was living [sic].
Assignment of Error No. III
Trial court erred as a matter of law, abused its discretion and erred against the weight of the evidence when finding defendant-appellant failed to prove by a preponderance of evidence that false statements or inaccurate statements were made knowingly or with a reckless disregard for truth in order to acquire a search warrant a residence [sic] known as 552 Pearl Street, Marion, Ohio in which the defendant-appellant was allegedly using [sic].
{¶9} In his assignments of error, Scott argues that the trial court erred by denying his motions to suppress evidence. Specifically, Scott argues that competent, credible evidence does not support the trial court‘s determination that Deputy Allen did not include false or misleading information in the search-warrant
{¶10} “Appellate review of a motion to suppress presents a mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to evaluate the evidence and the credibility of witnesses. Id. See State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a motion to suppress, “an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence.” Burnside at ¶ 8, citing State v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court‘s conclusions of law, however, our standard of review is de novo, and we must independently determine whether the facts satisfy the applicable legal standard. Id., citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).
{¶11} The
In determining the sufficiency of probable cause in an affidavit submitted in support of a search warrant, “[t]he task of the issuing magistrate is simply to 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.”
George at paragraph one of the syllabus, quoting Illinois v. Gates, 462 U.S. 213, 238-239 (1983). Generally, “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.” Id. at paragraph two of the syllabus, citing Gates. “In conducting any after-the-fact scrutiny of an affidavit submitted in support of a search warrant, * * * 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.” Id., citing Gates.
{¶15} We begin with statements common to all three affidavits. These statements fall into four categories: pre-2019 information, information about a January 2019 traffic stop, information about electricity usage at 552 Pearl Street as compared to other properties, and information about the qualifications and experience of Special Agent Andrew Webb (“Agent Webb“), who assisted Deputy Allen during the investigation. We address each of these categories in turn.
{¶16} Each of the three search-warrant affidavits at issue in this case features 11 identical paragraphs containing information about Scott‘s alleged involvement with marijuana and marijuana cultivation during the period from September 8, 2000 through June 4, 2015. Most of these paragraphs relate tips given to law enforcement officers by informants. In addition, some of the paragraphs touch on information discovered by law enforcement officers while investigating these tips as well as other relevant information that came to the attention of law enforcement officers
Since September 08, 2000[,] when Jeremy Scott was arrested for possession of marijuana[,] there have been multiple tips called in on him. Jeremy has been stopped in multiple traffic stops and caught with various grow equipment as well.
On August 31, 2008[,] Rita Miley called in a tip stating that she has a child with Jeremy and that the child made a statement saying that Jeremy is growing and selling weed.
* * *
On January 26, 2015[,] unknown caller reported that her grandchildren have told her about some drug houses. Children stated that 178 Leader Street is a drug house that nobody lives in, 345 [sic] Chestnut Street is a drug house that nobody lives in and the owner lives at 552 Pearl Street where he has a safe full of money there along with guns and mean dogs. All of these houses were owned by Laureen Strunk who is Jeremy Scott‘s mother according to the female on the tip line.
* * *
On March 03, 2010[,] a traffic stop occurred with Jeremy Scott as the driver. Jeremy was operating a grey Chevy Cavalier * * *[.] [D]uring the traffic stop[,] the officer smelled the odor of marijuana and later searched the car to find items related to a small growing operation. These items included fluorescent lights, marijuana leaf clippings, starter tray and an empty soil bag. On May 21, 2015[,] MARMET pulled trash at 552 Pearl Street and located multiple items that show Jeremy Scott appears to be growing at this address. Located in the trash was mail that had Jeremy Scott‘s name on it, marijuana leaves, and an Ohio Edison bill for 354 Chestnut Street, a bill ledger, and a plastic baggie with marijuana inside of it.
(Defendant‘s Exs. 7, 10, 13).
{¶17} Scott claims that these 11 paragraphs contain various falsehoods and misrepresentations. He also maintains that critical information has been omitted from many of them. For example, with respect to the paragraphs relaying the tips law enforcement officers received from various informants, Scott argues that Deputy Allen should have had serious doubts about the truth of the information contained in these tips because some of the tips came from anonymous informants, “the most unreliable of tipsters,” and others came from named informants who “ha[d] an animus against [him].” (Appellant‘s Brief at 8-9). In addition, Scott
{¶18} Scott‘s arguments are without merit. After reviewing the record, we conclude that, with limited exceptions, Scott failed to prove that the information contained in these 11 paragraphs was false or that critical information was omitted from any of them. To the extent that Scott did prove the existence of misstatements or inaccuracies within these 11 paragraphs, the record supports that such misstatements or inaccuracies were the product of honest mistakes on the part of Deputy Allen. However, “[a]llegations of negligence or innocent mistake are insufficient” to invalidate a search-warrant affidavit under Franks. Franks, 438 U.S. at 171.
{¶19} Furthermore, concerning Scott‘s claims about the credibility of the informants, “the subject of [a Franks] hearing is the veracity of the affiant, not of persons on whom he justifiably relied.” United States v. Barone, 787 F.2d 811, 814 (2d Cir.1986). Provided that Deputy Allen‘s reliance on these informants was reasonable, the fact that these informants might have lied does not supply a basis for invalidating the search warrants. See State v. Stebner, 46 Ohio App.3d 145, 148 (11th Dist.1988) (“[A]s long as the affiant-police officer believed the information was true and his belief was reasonable, the warrant‘s validity was not affected by
{¶20} Next, each of the three affidavits also contains a paragraph detailing a January 2019 traffic stop that helped to revive the investigation into Scott‘s suspected marijuana growing operation. This paragraph provides, in relevant part:
On January 16, 2019[,] Jeremy Scott was stopped in a traffic stop * * *. The vehicle was searched and in the trunk a grow light and amplifier was [sic] found.
(Defendant‘s Exs. 7, 10, 13).3
{¶21} Scott argues that this paragraph contains false information because “[t]he report from the stop does not mention anything about [him] having a grow
{¶22} In addition, the three affidavits each feature paragraphs detailing electricity usage at 552 Pearl Street as compared to similar properties. In these paragraphs, Deputy Allen explained that after the grow light and amplifier were
{¶24} With respect to Scott‘s first argument, under the facts of this case, it is not significant that Deputy Allen failed to inform the issuing judges that he used a template to draft the search-warrant affidavits. An “affidavit is [not] invalid to support a search warrant simply because it ha[s] a preprinted format * * *.” United States v. Garcia, 528 F.3d 481, 486 (7th Cir.2008), quoting United States v. Romo, 914 F.2d 889, 898 (7th Cir.1990). “As long as there is sufficient information to provide probable cause for the search, the fact that the affidavit is partially pre-prepared is irrelevant.” Romo at 898. Thus, it is immaterial whether Deputy Allen used a “form” affidavit or whether he disclosed that fact; what matters is whether the averments in the affidavits were accurate to the best of Deputy Allen‘s knowledge and whether those averments supported findings of probable cause.
{¶25} Furthermore, contrary to Scott‘s argument, the record does not establish that Deputy Allen misrepresented his law enforcement experience or that he omitted details about the length of his law-enforcement service in order to mislead the issuing judges. At the suppression hearing, Deputy Allen testified that, in addition to his initial training at the law enforcement academy, he completed additional training with other members of the MARMET task force when he was assigned to the task force. (Aug. 30, 2019 Tr. at 60). In addition, Deputy Allen completed at least one training module specific to narcotics investigations. (Doc. Nos. 10, 13). Although Deputy Allen did not mention that he had been a law enforcement officer for only three years and a member of the MARMET task force for less than a year, the record does not support that Deputy Allen misrepresented his qualifications or that he made statements about marijuana growing operations that exceeded the scope of his training and experience.
{¶27} At the suppression hearing, Deputy Allen testified that he selected the comparison houses based on information from the Marion County Recorder‘s Office showing that the houses were approximately the same size as 552 Pearl Street. (Aug. 30, 2019 Tr. at 96). However, he stated that he did not notice that the records for 231 Pearl Street indicated that it was a duplex. (Id.). Deputy Allen testified that he drove by 231 Pearl Street and 189 Pearl Street in February 2019, but he admitted that he did not knock on the door of either house or otherwise verify how many people, if any, lived in the houses. (Id. at 95-97, 99, 101). With respect to 231 Pearl Street, Deputy Allen stated that he did not notice that there were two electric meters attached to the house and that he believed that 231 Pearl Street was a single-family home. (Id. at 98). Furthermore, he testified that he did not know whether the subpoenaed electrical records for 231 Pearl Street documented the
{¶28} In addition, Thomas Burton (“Burton“), one of Scott‘s friends, testified that he was familiar with 231 Pearl Street and 189 Pearl Street. Burton stated that he knew the family that lived at 231 Pearl Street and that, from his familiarity with the family, he knew that 231 Pearl Street was a duplex. (Sept. 26, 2019 Tr. at 59-61). In addition, he testified that 189 Pearl Street “looks like an abandoned house” and that “as long as [he has] lived in Marion, it‘s always been like * * * the creepy old cat lady house * * *.” (Id. at 64-65). He noted that the yard at 189 Pearl Street was “overgrown and unkempt, like you would expect from an abandoned house.” (Id. at 68).
{¶29} Furthermore, Burton identified a series of photographs of 231 Pearl Street and 189 Pearl Street that he took in June 2019. (Id. at 58, 60); (Defendant‘s Exs. 18-29). Defendant‘s Exhibits 18-21, which depict 231 Pearl Street, show that 231 Pearl Street has two electric meters, two mailboxes, and numerous access doors, all of which are clearly visible from the street. Defendant‘s Exhibits 22-29, which depict 189 Pearl Street, show overgrown grass, bushes, and trees as well as some
paper trash accumulated on the front porch. Burton testified that when he took the pictures of 189 Pearl Street, he knocked on the door but no one answered. (Sept. 26, 2019 Tr. at 66). However, he admitted that because he never went inside of 189 Pearl Street, he did not know whether the air conditioning or heat were running while he was there or whether the house was supplied with electricity. (Id. at 75-77). Moreover, Burton acknowledged that, although the yard at 189 Pearl Street was poorly maintained, the walls and roof were not “falling in.” (Id. at 75).
{¶30} After reviewing the evidence presented at the suppression hearing, we conclude that competent, credible evidence supports the trial court‘s findings. First, Scott failed to demonstrate that 189 Pearl Street was vacant. At most, Scott proved that the yard at 189 Pearl Street was not ideally cared for and that he and others, like Burton, regarded the house as vacant based on its appearance. Furthermore, while we believe that Scott established that 231 Pearl Street is a duplex, Scott failed to prove that the subpoenaed electrical records inaccurately represented the total amount of electricity used at 231 Pearl Street. As noted by the trial court, “[t]here was no testimony about whether both meters are operational,” it is “unclear * * * from the testimony whether that duplex is completely occupied by [Burton‘s acquaintance] or whether or not the other half of it is simply empty,” and there was “no testimony as to what the square footage split of the house is.” (Oct. 9, 2019 Tr. at 37-38). Thus, we agree with the trial court that Scott did not present evidence
{¶31} Finally, the three affidavits each contain a paragraph summarizing the training, experience, and qualifications of Agent Webb of the Ohio Bureau of Criminal Investigation (“BCI“). As Deputy Allen did not have experience with thermal-imaging devices, Deputy Allen worked with Agent Webb “for the use of [BCI‘s] thermal imagery equipment and their certifications for said equipment.” (Defendant‘s Exs. 7, 10, 13). Deputy Allen stated that “Agent Webb is certified as a law enforcement thermographer with training and experience utilizing thermal imaging equipment in the investigation of indoor marijuana grow operations.” (Defendant‘s Exs. 7, 10, 13). Moreover, according to Deputy Allen, Agent Webb
{¶32} Scott argues that Deputy Allen falsely claimed that Agent Webb is a certified law-enforcement thermographer because Agent Webb “did not claim to be certified at all as a thermographer * * * [and] said he was unaware of any continuing education requirements that a thermographer had to meet.” (Appellant‘s Brief at 12). Scott notes that Agent Webb “said he was unaware of the different levels of certification that a thermographer could reach” and that Agent Webb took only a “24 hour course * * * on thermal imaging in 2013” and a seminar at which it was mentioned that thermal imaging could be used to detect the presence of an indoor marijuana growing operation. (Id.).
{¶33} We are not persuaded. Scott‘s argument is premised on the testimony of R. James Seffrin (“Seffrin“), a “certified infrared thermographer.” (Aug. 30, 2019 Tr. at 125). Seffrin testified that the company that he owns and leads, Infraspection Institute, offers four levels of certification in thermography: Level I, Level II, Level III, and Master. (Id. at 126-127). However, Seffrin did not testify that the certifications offered through his company are the sole certifications available to thermographers generally or to law-enforcement thermographers specifically. Moreover, it is undisputed that Agent Webb completed a 24-hour
{¶34} Next, we consider the second category of statements: statements specific to the affidavit used to support Deputy Allen‘s request for authorization to scan 552 Pearl Street with a thermal-imaging device. This affidavit features various paragraphs explaining that a “thermal image evaluation” might provide information that could “corroborate other information developed in this investigation that is indicative of an indoor marijuana growing operation.” (Defendant‘s Ex. 7). Furthermore, in these paragraphs, which were part of the existing template Deputy Allen used to draft his affidavit, Deputy Allen attempted to provide a brief explanation of the scientific principles underlying thermal imaging. (Id.). He also stated that “thermal imaging equipment is a valuable tool for law enforcement in
{¶35} Scott‘s arguments about the alleged falsehoods and inaccuracies in these paragraphs are elaborate and numerous. Basically, Scott argues that (1) Deputy Allen falsely claimed that the results of a thermal-imaging scan could provide probative evidence of an indoor marijuana growing operation; (2) Deputy Allen inaccurately described the science of heat transfer and thermal imaging and the capabilities of thermal-imaging devices; and (3) Deputy Allen misrepresented the conditions of an indoor marijuana growing operation in a way that created “an unreasonable expectation * * * as to * * * the conditions [a thermal-imaging device] can detect.” (Appellant‘s Brief at 12-17).
{¶36} We cannot find merit in any of Scott‘s arguments. First, we flatly reject Scott‘s claim that a thermal-imaging scan could not have produced probative evidence of indoor marijuana cultivation. Scott suggests that thermal imaging might be probative if “there was a flyover of an old barn in the middle of nowhere emitting * * * infrared * * * radiation” but that it would not be probative with respect to a “thermal flyover of a house that will, like all houses, be emitting invisible infrared radiation * * *.” (Appellant‘s Brief at 14). However, although the former type of thermal-imaging scan might produce stronger evidence of indoor marijuana
{¶37} Furthermore, we cannot conclude that Deputy Allen‘s statements about the science of thermal imaging, the capabilities of thermal-imaging devices, and the conditions of an indoor marijuana growing operation were so erroneous as to mislead the issuing judge. For these arguments, Scott again relies on Seffrin‘s expertise in thermal imaging. Throughout his testimony and in his expert report, Seffrin described many instances where he believed that Deputy Allen either inaccurately characterized the science of thermal imaging, gave a false impression of the capabilities of thermal-imaging devices, or misrepresented the conditions associated with an indoor marijuana growing operation. (See Aug. 30, 2019 Tr. at 125-172); (See Defendant‘s Ex. 35). However, after reviewing Seffrin‘s testimony
{¶38} Lastly, we consider the third category of statements: statements common to the affidavits for 552 Pearl Street and 354 Chestnut Street or specific to the affidavit for 354 Chestnut Street. The search-warrant affidavits for 552 Pearl Street and 354 Chestnut Street both contain a paragraph relaying the results of the thermal-imaging scan conducted on March 1, 2019. This paragraph provides:
On February 28, 2019[,] a search warrant for a thermal imaging device was signed by Judge Brent Rowland and on March 01, 2019[,] a thermal imaging device was used to check the temperature levels at 552 Pearl Street. During this search warrant[,] the house appears to be consistent with a marijuana growing operation.
{¶39} Scott argues that, in this paragraph, Deputy Allen falsely claimed that a thermal-imaging device was used to detect temperature levels because, according to Seffrin, “thermal imaging equipment is incapable of measuring temperatures.” (Appellant‘s Brief at 21). He maintains that thermal-imaging devices instead “detect[] invisible heat radiation emitted from an object * * *.” (Id.). Scott also claims that Deputy Allen intentionally or recklessly misled the court because “Seffrin says it is impossible to say a house can appear as a location of an indoor marijuana growing operation as there is no single thermal pattern that is consistent with indoor marijuana cultivation for any structure.” (Id.).
{¶40} Both of these arguments are unpersuasive. As with Deputy Allen‘s other descriptions of the science of thermal imaging and the capabilities of thermal-imaging devices, we do not believe that Deputy Allen‘s statements were so incorrect as to mislead the issuing judge. While perhaps not entirely accurate, Deputy Allen‘s statement was more than sufficient to give the reviewing judge a working
{¶41} In addition, despite Seffrin‘s disagreement with the conclusion that the results of the thermal-imaging scan were consistent with an indoor marijuana growing operation, a conclusion conveyed to Deputy Allen by Agent Webb, Scott has failed to carry his burden of demonstrating that this statement was included in the affidavits as a result of Deputy Allen‘s deliberate falsehood or reckless disregard for the truth. First, we are not convinced that Scott actually proved that this statement was false. During his testimony, Seffrin admitted that “[t]hermal imaging requires interpretation of the data which in and of itself is subjective at some level.” (Aug. 30, 2019 Tr. at 170). He also stated that it is possible for people to interpret thermal-imaging results differently, though he suggested that differing interpretations result from inadequate training. (Id.). Thus, Seffrin‘s testimony leaves open the possibility that Agent Webb‘s findings were a reasonable interpretation of the data, notwithstanding Seffrin‘s disagreement.
{¶42} Regardless, even if Agent Webb‘s conclusions were incorrect, what matters is whether Deputy Allen knew or had reason to know that Agent Webb‘s conclusions were wrong when he included them in the affidavits. Nothing in the
{¶43} Finally, the search-warrant affidavit for 354 Chestnut Street contains three paragraphs that do not appear in the other two affidavits. These paragraphs provide:
21. Throughout the time that I[, Deputy Allen,] have been investigating Jeremy Scott[,] I have been able to observe him coming and going from 354 Chestnut Street. His vehicle is a silver Mercedes * * * [and] the registration on this vehicle returns to the address of 354 Chestnut Street. Jeremy Scott‘s Ohio driver‘s license also returns to 354 Chestnut Street. The bills for Jeremy‘s electricity were subpoenaed and it was found that he has electricity bills at both 552
Pearl Street and 354 Chestnut Street that come in his name through Ohio Edison. 22. I spoke with Detective Matt Baldridge whom advised me he had gotten a tip from Jamie Ernst about Jeremy having marijuana at his residence on Chestnut Street. Jamie who was in a relationship with Jeremy Scott years ago has a daughter with Jeremy * * *. Jamie stated that [their daughter] had sent her photos of the marijuana, and she forwarded them to us on December 29, 2019 [sic]. I reviewed the photos and with my training and experience it appeared to be a plastic red tub full of marijuana clippings. I was advised that the tub was in a locked closet that was in the kitchen at Jeremy‘s residence on Chestnut Street.
23. Due to previous tips stating that Jeremy has been seen going in and out of Chestnut Street with a backpack in the past and a recent tip with Jeremy being traffic stopped and in possession of grow equipment as well as photos from his daughter that show marijuana clippings in the residence it is suspected that Jeremy is taking the marijuana that he is growing from 552 Pearl Street and keeping it and other related items at 354 Chestnut Street.
(Defendant‘s Ex. 10).
{¶45} We can quickly dispose of Scott‘s first two arguments. Although Scott is technically correct that paragraph 22 is inaccurate insofar as Deputy Allen had only one photograph to review, Scott has not shown that these pluralizations were anything more than innocent misstatements on Deputy Allen‘s part. What is more, to fault Deputy Allen for his imprecision would be to engage improperly in a “hypertechnical” construction of the search-warrant affidavit. See State v. Hobbs, 4th Dist. Adams No. 17CA1054, 2018-Ohio-4059, ¶ 27 (“[R]eviewing courts must refrain from interpreting search-warrant affidavits ‘in a hypertechnical, rather than a commonsense, manner.‘“), quoting Gates, 462 U.S. at 236, quoting Ventresca, 380 U.S. at 109. In addition, Scott has not demonstrated that Deputy Allen knew
{¶46} Furthermore, with respect to Scott‘s third argument, even assuming that the photograph was doctored, Scott has failed to establish that Deputy Allen knew or should have known that the photograph had been modified. Because Deputy Allen had not been inside of 354 Chestnut Street at any time before he requested the search warrant, he did not know what the room depicted in the photograph actually looked like. Deputy Allen received information suggesting that the photograph was taken from inside a kitchen closet at 354 Chestnut Street, and we believe that it was reasonable for him to rely on that information. Moreover, although there are clear differences between the room as depicted in the photograph used by Deputy Allen and the room as depicted in photographs taken after the search warrant was executed, there are no obvious signs of doctoring in the photograph relied on by Deputy Allen. (See Defendant‘s Exs. 16, 17).
{¶47} Scott‘s fourth argument, however, warrants slightly more attention. To support this argument, Scott points to the testimony of Dr. Hannah Mathers (“Dr. Mathers“), who was qualified as an expert in plant identification. (Sept. 26, 2019 Tr. at 14). At the suppression hearing, Dr. Mathers stated that she examined Defendant‘s Exhibit 16, the photograph used by Deputy Allen, to determine whether the vegetation contained in the tub portrayed in the photograph was marijuana. Dr.
{¶48} Based on Dr. Mathers‘s testimony, the trial court stated that it “certainly h[ad] * * * doubts * * * as to whether or not what is in Defendant‘s Exhibit 16 is marijuana or not,” though it did not definitively find that the vegetation depicted in Defendant‘s Exhibit 16 is not marijuana. (Oct. 9, 2019 Tr. at 35-36). After reviewing Defendant‘s Exhibit 16 and Dr. Mathers‘s testimony, we share the trial court‘s doubts. Therefore, although we cannot make the initial finding that Defendant‘s Exhibit 16 does not depict marijuana, we will assume for the sake of Scott‘s argument that it does not depict marijuana.
{¶49} Yet, as noted by the trial court, “the question isn‘t really about * * * what is actually in the picture. It‘s [about] what a reasonably trained officer or affiant would believe it is.” (Id. at 35). “[T]he requirement that an affiant be truthful in an application for a search warrant does not mean that every fact stated in the application is correct.” Lonardo, 2012 WL 3685958, at *5. Although an affiant must be truthful,
[t]his does not mean “truthful” in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be
founded upon hearsay and upon information received from informants, as well as upon information within the affiant‘s own knowledge that sometimes must be garnered hastily. But surely it is to be “truthful” in the sense that the information put forth is believed or appropriately accepted by the affiant as true.
Franks v. Delaware, 438 U.S. 154, 165 (1978).
{¶50} Here, there is absolutely no evidence that Deputy Allen knew that Defendant‘s Exhibit 16 did not depict marijuana when he executed the affidavit for 354 Chestnut Street. Nor is there any evidence that Deputy Allen had serious doubts about whether the photograph portrayed marijuana when he submitted the affidavit. At a quick glance, one could certainly mistake the vegetation in Defendant‘s Exhibit 16 for marijuana clippings, and coupled with the tip that Scott was keeping marijuana at 354 Chestnut Street, it was not manifestly unreasonable for Deputy Allen to believe, in light of his training and experience, that Defendant‘s Exhibit 16 appeared to depict some of the marijuana referred to in the tip. Moreover, while consultation with an expert such as Dr. Mathers could have aided Deputy Allen in determining whether Defendant‘s Exhibit 16 did in fact depict marijuana clippings, we cannot say that Deputy Allen‘s failure to do so was reckless. Therefore, we conclude that competent, credible evidence supports the trial court‘s determination
{¶51} Finally, while Scott contends that there are problems with paragraphs 21 and 23 of the affidavit for 354 Chestnut Street, his arguments are unavailing. For the most part, Scott simply rehashes arguments that he made previously, such as that these paragraphs are partly false because Deputy Allen actually reviewed only one photograph, rather than multiple photographs, and that the police report from the January 2019 traffic stop did not mention that a grow light and amplifier were discovered in the vehicle. Having already rejected these arguments, we need not consider them again. Scott‘s other arguments do not so much assert that these paragraphs contain false information as claim that they describe innocent, noncriminal behaviors that cannot contribute to a finding of probable cause. However, “innocent behavior frequently will provide the basis for a showing of probable cause * * *.” Gates, 462 U.S. at 243, fn. 13. “The relevant inquiry when examining the totality of the circumstances supporting probable cause ‘is not whether particular conduct is “innocent” or “guilty,” but the degree of suspicion that attaches to particular types of noncriminal acts.‘” State v. Schlick, 8th Dist. Cuyahoga No. 77885, 2000 WL 1803216, *4 (Dec. 7, 2000), quoting Gates at 243, fn. 13. Thus, the fact that these paragraphs describe conduct that might appear
{¶52} To summarize the foregoing, we conclude that competent, credible evidence supports the trial court‘s finding that Deputy Allen did not knowingly and intentionally, or with reckless disregard for the truth, include false statements in any of the search-warrant affidavits. Yet, despite this conclusion, we must still determine whether the search-warrant affidavits contain information sufficient to support the issuing judges’ probable-cause determinations. This requires us to address Scott‘s argument that the information contained in the search-warrant affidavits is too stale to support findings of probable cause.
{¶53} “An affidavit in support of a search warrant must present timely information and include facts so closely related to the time of issuing the warrant as to justify a finding of probable cause at that time.” State v. Maranger, 2d Dist. Montgomery No. 27492, 2018-Ohio-1425, ¶ 36, citing State v. Jones, 72 Ohio App.3d 522, 526 (6th Dist.1991). “‘The more “stale” the evidence becomes, the less likely it is to support probable cause.‘” State v. Morales, 10th Dist. Franklin No. 17AP-807, 2018-Ohio-3687, ¶ 19, quoting State v. Ridgeway, 4th Dist. Washington No. 00CA19, 2001 WL 1710397 (Nov. 21, 2001). However, “[n]o arbitrary time limit dictates when information becomes ‘stale.‘” Maranger at ¶ 36, citing Jones at 526. Rather, “‘[t]he test for staleness is whether the alleged facts
{¶54} “‘The question of staleness is not measured solely by counting the days between the events listed in the affidavit and the application for warrant.‘” Id. at ¶ 20, quoting Ingold at ¶ 23. “‘Ohio courts have identified a number of factors to consider in determining whether the information contained in an affidavit is stale, including the character of the crime, the criminal, the thing to be seized, as in whether it is perishable, the place to be searched, and whether the affidavit relates to a single isolated incident or ongoing criminal activity.‘” Id., quoting Ingold at ¶ 23 and citing United States v. Brooks, 594 F.3d 488, 493 (6th Cir. 2010). “The question of staleness, then, depends on the ‘inherent nature of the crime.‘” United States v. Thomas, 605 F.3d 300, 309 (6th Cir. 2010), quoting United States v. Henson, 848 F.2d 1374, 1382 (6th Cir. 1988). “A marijuana growing operation, which is a long-term operation, may allow for greater lapses of time between the information relied upon and the request for a search warrant.” Id. at 310, citing United States v. Greany, 929 F.2d 523, 525 (9th Cir. 1991) and United States v. Thomas, 6th Cir. Nos. 92-6207 and 92-6208, 1993 WL 337553, *3 (Aug. 31, 1993). This is at least in part due to the fact that the items used in the cultivation of
{¶55} Furthermore, “‘[w]here recent information corroborates otherwise stale information, probable cause may be found.‘” United States v. Spikes, 158 F.3d 913, 924 (6th Cir. 1998), quoting Henson at 1381-1382. That is, stale information may be “refreshed” when law enforcement officers acquire “newer information that relates back to the subject of the older information.” United States v. Cintron, 243 Fed.Appx. 676, 679 (3d Cir. 2007), citing United States v. Tehfe, 722 F.2d 1114, 1120 (3d Cir. 1983).
{¶56} Here, we have little doubt that if law enforcement officers had sought search warrants in 2015 based solely on pre-2019 information, a judge could have easily found that there was probable cause both to scan 552 Pearl Street with a thermal-imaging device and to search inside 552 Pearl Street and 354 Chestnut Street for evidence of a marijuana growing operation. With the exception of the information about Scott‘s possession of marijuana in September 2000, which is of minimal probative value given Scott‘s age at the time, 15, and its distant relation in time to the other information in the affidavits, the three affidavits document that from 2008 through 2015, law enforcement officers received a steady stream of tips
{¶57} Yet, law enforcement officers did not seek these warrants in 2015. Instead, it was not until 2019, when law enforcement officers received new information suggesting that Scott was still growing marijuana, that Deputy Allen requested the warrants. By the time Deputy Allen requested the search warrants in February and March 2019, the majority of the information contained in the three affidavits was at least 44 months old. Therefore, assuming that the pre-2019 information became stale during this period, the critical issue becomes whether the information discovered at or around the beginning of 2019 refreshed the otherwise stale pre-2019 information.
{¶59} Furthermore, to the extent that the elevated electricity usage at 552 Pearl might be accounted for in another way, the fact that the results of the thermal-imaging scan were consistent with indoor marijuana growing suggested that Scott had at least restarted the marijuana growing operation, if he had ever suspended it. Finally, the tip that indicated that Scott was storing marijuana at 354 Chestnut Street served to renew the link between 552 Pearl Street and 354 Chestnut Street and suggested that Scott was still using multiple locations to run a marijuana growing operation.
{¶60} Ultimately, however, we need not definitively resolve the question of staleness because, even if the information in the affidavits were too stale to support findings of probable cause, suppression would not be appropriate. “The exclusionary rule should not bar the use of evidence obtained by officers acting in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate even if that warrant is ultimately found to be unsupported by probable cause.” State v. Reece, 3d Dist. Marion No. 9-17-27, 2017-Ohio-8789, ¶ 17, citing State v. George, 45 Ohio St.3d 325 (1989), citing United States v. Leon, 468 U.S. 897 (1984). Nevertheless, the good-faith exception is inapplicable and suppression is still appropriate
Id., quoting George at 331, citing Leon at 923.
{¶61} In this case, there is neither argument nor evidence that the issuing judges wholly abandoned their judicial functions. Furthermore, the warrants are not so facially deficient that the executing officers could not reasonably presume their validity, and we have already concluded that the evidence does not support that the issuing judges were misled by information in the affidavits that Deputy Allen knew was false or would have known was false if not for reckless disregard of the truth. Therefore, the applicability of the good-faith exception turns on whether the search-warrant affidavits contain sufficient indicia of probable cause.
{¶62} We conclude that because the search-warrant affidavits contain more than sufficient indicia of probable cause, the good-faith exception applies regardless of whether the information in the affidavits is otherwise too stale to support findings
{¶63} Scott‘s assignments of error are overruled.
{¶64} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
/jlr