STATE OF OHIO, PLAINTIFF-APPELLEE vs. RASHEED TUTT, DEFENDANT-APPELLANT
No. 102687
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 10, 2015
2015-Ohio-5145
JOURNAL ENTRY AND OPINION;
BEFORE: E.A. Gallagher, P.J., E.T. Gallagher, J., and Stewart, J.
JUDGMENT:
AFFIRMED IN PART; REVERSED IN PART; REMANDED
ATTORNEYS FOR APPELLANT
P. Andrew Baker
17877 St. Clair Avenue, Suite 150
Cleveland, Ohio 44110
Steve W. Canfil
55 Public Square, Suite 2100
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mark D. Bullard
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:
{¶1} Defendant-appellant Rasheed Tutt appeals his convictions after he pled no contest to multiple counts of drug trafficking, drug possession, possessing criminal tools, possessing a defaced firearm, receiving stolen property and tampering with evidence arising out of his role in a drug trafficking operation. Tutt‘s convictions were based on evidence seized during a search of Tutt‘s residence after Cleveland police made two successful “controlled buys” of heroin outside the residence. Tutt claims that his no contest pleas to two of the counts — Count 3, trafficking in violation of
{¶2} In March 2014, members of the Cleveland Police Department conducted two “controlled buys” of heroin outside Tutt‘s residence at 10812 Amor Avenue in Cleveland. Based on the affidavit of Detective Robert Sauterer, which set forth facts relating to the “controlled buys” and additional information Detective Sauterer discovered during his follow-up investigation, Cleveland police obtained a search warrant to search Tutt‘s residence. The search warrant authorized police to search the residence and its curtilage for:
Heroin, other narcotic drugs and/or controlled substances, and/or counterfeit controlled substances; instruments and paraphernalia used in the taking of drugs and/or preparation of illegal drugs for sale, use, or shipment including but not limited to scales and grinders; home safes, records of illegal transactions, including but not limited to computers and computer files and discs; articles of personal property, papers and documents tending to establish the identity of the persons in control of the premises; any and all evidence of communications used in the furtherance of drug trafficking activity, including, but not limited to, pagers, cellular telephones, answering machines, and answering machine tapes; any and all other contraband, including but not limited to money and weapons being illegally possessed therein; any and all evidence pertaining to the violations of the drug laws of the State of Ohio, to wit:
Sections 2925.03 ,2925.11 , and2923.24 of the Ohio Revised Code .1
{¶3} The police executed the warrant that same day. Once inside the residence, they confiscated numerous items including several bags of heroin, crack cocaine and marijuana, a press, several scales and grinders with suspected drug residue and numerous cell phones, guns and ammunition. Tutt was subsequently indicted in Cuyahoga C.P. No. CR-14-583969-E for drug trafficking, drug possession, possessing criminal tools, possessing a defaced firearm, receiving stolen property and tampering with evidence.
{¶4} On September 5, 2014, Tutt filed a motion to suppress the evidence seized during the search arguing that the underlying affidavit failed to demonstrate probable cause for the issuance of the search warrant. After hearing argument on the issue, the trial court denied the motion.
{¶5} In October 2014, Tutt was re-indicted in Cuyahoga C.P. No. CR-14-589749-E and charged with the following offenses:
Count One — Trafficking in violation of
Count Two — Drug possession in violation of
Count Three — Trafficking in violation of
Count Four — Drug possession in violation of
Count Five — Trafficking in violation of
Count Seven — Possessing a defaced firearm in violation of
Count Ten — Receiving stolen property in violation of
Count Twelve — Tampering with evidence in violation of
Count Seventeen — Having weapons under disability in violation of
{¶6} The state ultimately concluded that the having weapons while under disability charge (Count 17) was “not a proper charge” and agreed to dismiss it. On January 22, 2015, Tutt pled no contest to the remaining charges (Counts 1, 2, 3, 4, 5, 6, 7, 10 and 12).
{¶7} At the plea hearing, the trial court first identified the counts to which Tutt would be pleading no contest and the classification of each offense. The trial court then reviewed the sentence ranges and maximum sentences applicable to each of the counts, including the associated firearm specifications, with Tutt, as follows:
THE COURT: Felonies of the first degree, as indicted in 589749, count 3, trafficking in drugs; count 4, possession of drugs.
Felonies of the first degree carry anywhere from 3 to 11 years in prison in yearly increments and/or a fine up to $20,000. They have a 1-year firearm specification which must be served prior to and consecutive to the base charge of 3 to 11.
Felonies of the fourth degree carry anywhere from 6 to 18 months in prison in monthly increments and/or a fine up to $5,000.
A felony 5 carries anywhere from 6 to 12 months in prison in monthly increments and/or a fine up to $2,500.
A first-degree misdemeanor carries anywhere from up to 6 months in county jail and/or a fine up to $1,000.
Felony 3 carries anywhere from 9, 12, 18, 24, 30, or 36 months in prison and/or a fine up to $10,000.
Counts 1, 2, 3, 4, 5 all have firearm specifications which must be served prior to and consecutive to the base charges.
{¶8} The trial court also advised Tutt regarding postrelease control and the property that he would be forfeiting as a result of his pleas:
Felony 1s you have mandatory 5 years post-release control. Felony 3‘s, 4‘s, and 5‘s, discretionary period of 3 years post-release control. Post-release control could involve restrictions on your activities. If you violate those, you could be returned up to one half of your original sentence. * * *
[Y]ou are going to forfeit cell phone, digital scales, guns * * *. You‘re going to forfeit $526 in U.S. currency and miscellaneous items listed in the forfeiture specifications.
{¶9} Upon inquiry by the trial court, Tutt indicated that he understood the potential penalties he faced as a result of his pleas. The trial court then proceeded to advise Tutt of his constitutional rights and confirmed that Tutt understood the rights
{¶10} The trial court ordered a presentence investigation report and thereafter sentenced Tutt to an aggregate sentence of six years in prison — one year in prison on each of Counts 1, 2, 5, 6, 10 and 12, six months on Count 7, five years in prison on Counts 3 and 4 and one year on the firearm specifications, with the sentences on all counts to be served consecutive to the one-year sentence on the firearm specifications but concurrent to each other. The trial court also imposed five years of mandatory postrelease control and ordered forfeiture of the items referenced in the indictment.
{¶11} Tutt appealed his convictions, raising the following two assignments of error for review:
Assignment of Error I: The trial court erred in failing to reverse the conviction when the plea was not made knowingly, intelligently, and voluntarily.
Assignment of Error II: The trial court erred when it overruled defendant-appellant‘s motion to suppress.
Law and Analysis
Compliance with Crim.R. 11(C)(2)(a)
{¶12} In his first assignment of error, Tutt argues that the trial court failed to comply with
{¶13} In considering whether a plea was entered knowingly, intelligently and voluntarily, “an appellate court examines the totality of the circumstances through a de novo review of the record.” State v. Spock, 8th Dist. Cuyahoga No. 99950, 2014-Ohio-606, ¶ 7; see also State v. Jackson, 8th Dist. Cuyahoga No. 99985, 2014-Ohio-706, ¶ 6.
(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty
involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing. (b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{¶14} When conducting a
{¶15} In determining whether the trial court has satisfied its duties under
{¶16} If an appellate court finds that a trial court did not substantially comply with a requirement of
{¶17} The state asserts that the trial court substantially complied with
{¶18} Although
[d]etermining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(Emphasis added.) State v. Davis, 8th Dist. Cuyahoga No. 76085, 2000 Ohio App. LEXIS 4044, *12-13 (Sept. 7, 2000) (“Although the judge must specifically determine whether a defendant understands that he is not eligible for probation, the rule does not require him to personally inform a defendant of this fact in every circumstance.
{¶19} Thus, where a defendant faces a mandatory prison sentence as a result of a guilty or no contest plea, the trial court must determine, prior to accepting a plea, that the defendant understands that he or she is subject to a mandatory prison sentence and that as a result of the mandatory prison sentence, he or she is not eligible for probation or community control sanctions. See, e.g., State v. Balidbid, 2d Dist. Montgomery No. 24511, 2012-Ohio-1406, ¶ 10; State v. Brigner, 4th Dist. Athens No. 14CA19, 2015-Ohio-2526, ¶ 14; State v. Hendrix, 12th Dist. Butler No. CA2012-12-265, 2013-Ohio-4978, ¶ 6; see also State v. Dawson, 8th Dist. Cuyahoga No. 61828, 1993 Ohio App. LEXIS 223, *5-6 (Jan. 23, 1993) (“Substantial compliance requires that an on the record dialogue take place, where defendant is orally informed of the possible sentence. * * * The trial court cannot misinform the defendant about the possible sentence. * * * The court must inform defendant if he would be required to serve actual time in prison * * * and must disclose the length of the mandatory actual incarceration.“).
{¶20} A trial court can meet this requirement either by expressly informing the defendant that he or she is subject to a mandatory prison sentence and is therefore ineligible for probation or community control sanctions or by confirming the defendant‘s subjective understanding of that fact in some other way, i.e., if the “totality of the circumstances” warrants the trial court in making a determination that the defendant otherwise understands, prior to entering his plea, that he or she is subject to a mandatory prison sentence. See, e.g., State v. Smith, 8th Dist. Cuyahoga No. 83395, 2004-Ohio-1796, ¶ 11 (“The mere fact that the [trial] court did not specifically say ‘You are ineligible for probation’ or ‘This offense requires a mandatory term of prison’ will not be fatal unless the record clearly indicates that the defendant was unaware that he would be sent to prison upon a plea of guilty and he was prejudiced by that fact.“); State v. McLaughlin, 8th Dist. Cuyahoga No. 83149, 2004-Ohio-2334, ¶ 19 (“[T]he trial court need not specifically inform the defendant he is ‘ineligible for probation’ if the totality of the circumstances warrant the trial court in making a determination the defendant understands the offense is ‘nonprobational.‘“).
{¶21} In Nero, supra, for example, the Ohio Supreme Court found substantial compliance with
{¶22} Where, however, (1) a trial court fails to expressly inform a defendant, prior to accepting his or her guilty or no contest plea, that the defendant is subject to a mandatory prison sentence and is not eligible for community control sanctions and (2) the totality of the circumstances do not show that the defendant otherwise subjectively understood, in entering a plea, that he or she would be subject to a mandatory prison sentence that rendered the defendant ineligible for probation or community control sanctions, the trial court does not substantially comply with
{¶23} The rationale for such a rule is that, without an adequate understanding of mandatory prison time, a defendant cannot fully understand the consequence of his or her plea as required by
To make a voluntary choice, the defendant must act with a “full understanding of the consequences” of his plea. * * * Because the prospect of probation or community control “would be a factor weighing heavily in favor of a plea,” the fact that a community-control sanction is statutorily precluded can affect a defendant‘s decision to enter a guilty plea. See State v. May, 64 Ohio App.3d 456, 460, 581 N.E.2d 1154 (9th Dist.1989).
Id. at *6-8 (conviction reversed where plea form executed by defendant indicated that prison term was not mandatory for rape charge and trial court accepted defendant‘s guilty plea to rape charge without informing defendant that he was ineligible for probation or community control sanctions; under the totality of the circumstances court was “not convinced that [defendant] understood that he was ineligible for community control or probation“); see also Douglas, 2007-Ohio-714, at ¶ 10 (Without an adequate explanation of mandatory prison time, a defendant is not informed of the maximum penalty to which he is pleading guilty and cannot fully understand the consequence of his plea as required by
{¶24} The state argues that this case is controlled by State v. Thomas, 8th Dist. Cuyahoga No. 94788, 2011-Ohio-214. We disagree. In Thomas, as in this case, the defendant argued that his plea should be vacated because the trial court failed to ascertain that he “knew and understood the mandatory prison issue” and failed to inform the defendant at the sentencing hearing that he was not eligible for probation or the imposition of community control sanctions. Id. at ¶ 23. At the sentencing hearing in Thomas:
The prosecutor outlined each charge at the beginning of the plea hearing, including whether the charge was a first-or second-degree felony. After ensuring that Thomas understood the constitutional rights he was waiving, the court stated: “You heard the prosecutor outline the offenses that you are agreeing to plead guilty to.” The trial court then informed Thomas that felonies of the first degree were punishable by three to ten years in prison, and further informed him that second-degree felonies were subject to two to eight years in prison. The trial court also outlined the mandatory sentence for the firearm specifications, including the fact that he would have to “complete 3 years” in prison for the firearm specifications before he began “serving day one of any sentence on the underlying offense.” The trial court also properly notified Thomas of all of the nuances of postrelease control and then asked Thomas if he understood everything that was just explained to him, to which Thomas replied that he did.
Id. at ¶ 24.
{¶25} In Thomas, however, the plea and sentence were “a package” that included an agreed-upon sentence, i.e., that the defendant would serve eight years in prison. Id. at ¶ 23, 26. The defendant admitted that this prison sentence was part of the deal. Id. Under those circumstances, the court rejected the defendant‘s arguments that he “did not understand that he would be sentenced to prison” and that the trial court should have discussed the fact that he “would have to be sentenced to prison” with him during the plea colloquy. Id. at ¶ 23, 27. The court held that “although the trial court did not specifically tell Thomas that he was not eligible for probation, it substantially complied with
{¶26} In this case, at the plea hearing, the trial court outlined the range of potential sentences Tutt could receive on Counts 3 and 4 — i.e., a potential sentence of “anywhere from 3 to 11 years in prison in yearly increments” plus a “1-year firearm specification which must be served prior to and consecutive to the base charge of 3 to 11,” along with “mandatory 5 years post-release control” and forfeiture of the items “listed in the forfeiture specifications.” There is no dispute that Tutt was correctly advised as to the maximum penalty he could receive for each of the offenses at issue. However, the trial court did not inform Tutt that the base offenses in Counts 3 and 4 included a mandatory prison term or that he was not eligible for probation or community control sanctions on those offenses. Even assuming that Tutt subjectively understood that he was subject to a one-year mandatory prison term on the firearm specifications,4 we do
{¶27} During the plea colloquy, Tutt indicated, in response to questioning by the trial court, that he was 23 and had a ninth grade education. The record further reflects that although Tutt had a prior misdemeanor conviction, he had no prior felony record. The offenses at issue — while very serious — were drug offenses, not the type of heinous crimes for which a defendant would have no reason to expect the imposition of community control sanctions. Compare, e.g., Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (murder); Rembert, 2014-Ohio-300, at ¶ 22-23 (aggravated murder). The trial court asked Tutt if he understood his rights as they had been explained to him by the court and the “potential penalties” he was facing but did not ask Tutt if he had any other questions related to his pleas. Tutt did not ask any questions and did not make any statements at the plea hearing that expressed an understanding that he was subject to a mandatory prison term on the base offenses in Counts 3 and 4.
{¶28} Considering the totality of the circumstances, we cannot say that Tutt subjectively understood at the plea hearing that he was subject to a mandatory prison term on the base offenses in Counts 3 and 4. As such, the trial court did not substantially comply with
Partial Compliance or Complete Failure to Comply
{¶29} However, this is not the end of our inquiry. We must further determine whether the trial court partially complied — requiring a prejudice analysis — or whether it “wholly failed” to comply — requiring no prejudice analysis. Based on a thorough review of the record, we conclude that the trial court wholly failed to comply with its responsibility under
{¶30} This is not a case in which the trial court informed the defendant of the mandatory nature of his sentence but in some way got it wrong, e.g., by misstating the length of the sentence or failing to adequately explain what a mandatory sentence means, or where conflicting information was provided to the defendant with
{¶31} In this case, the trial court neglected to mention to Tutt “at all” that he would have to serve a mandatory prison sentence on the base offenses in Counts 3 and 4. Because the trial court failed to inform Tutt of the mandatory prison term on the base offenses (which was a part of the maximum penalty), before it accepted his guilty pleas, the trial court wholly failed to comply with this requirement of
{¶32} In State v. Givens, 12th Dist. Butler No. CA2014-02-047, 2015-Ohio-361, for example, the defendant pled guilty to charges of robbery with a gun specification and petty theft. Id. at ¶ 3. Although the trial court properly advised the defendant at the plea hearing that he would be subject to a mandatory prison sentence on the gun specification, it failed to inform the defendant that he was also subject to a mandatory prison sentence on the base robbery charge. Id. at ¶ 3, 15. Instead, the trial court incorrectly advised the defendant that he may be eligible to earn days of credit while in prison and that prison was merely a “presumption.” Id. at ¶ 4, 15. In addition, the plea form improperly indicated that there was no mandatory sentence for the robbery charge. Id. at ¶ 4, 15-16. The Twelfth District rejected the state‘s argument that the trial court substantially complied with
{¶33} A similar result is warranted here. See also State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22, 26 (plea vacated where trial court failed to inform defendant that he was subject to a mandatory period of postrelease
did not advise defendant that incarceration was mandatory for rape convictions and instead, relying upon false information provided by the state and defense counsel, informed defendant that imprisonment was discretionary); State v. Dunham, 5th Dist. Richland No. 2011-CA-121, 2012-Ohio-2957, ¶ 16-17 (trial court committed prejudicial error in accepting defendant‘s guilty plea where trial court never orally informed defendant that any portion of his prison sentence was mandatory and plea form executed by defendant evidenced confusion regarding the mandatory sentencing range, such that defendant was unaware what portion of his prison term would be mandatory at the time he pled guilty); State v. Smith, 5th Dist. Licking No. 13-CA-44, 2014-Ohio-2990, ¶ 11-12 (trial court‘s failure to notify defendant of the amount of mandatory prison time to which he was subject prior to accepting his guilty pleas resulted in invalid pleas that required reversal); State v. Brigner, 4th Dist. Athens No. 14CA19, 2015-Ohio-2526, ¶ 14 (trial court “wholly failed to comply” with
{¶34} In this case, in contrast to Givens and a number of the other cases cited above, there is no claim that the trial court (or anyone else) provided inaccurate or conflicting information to Tutt or otherwise affirmatively misled him regarding the sentence he ultimately received. Nevertheless, because the record reflects that Tutt was unaware of the full extent of the penalties associated with his no contest pleas on Counts 3 and 4, we find that he did not enter his pleas to these charges knowingly, intelligently and voluntarily. Accordingly, Tutt‘s first assignment of error is sustained. We reverse Tutt‘s convictions on Counts 3 and 4, vacate his pleas as to Counts 3 and 4 and remand the matter for further proceedings consistent with this opinion.
Probable Cause for the Search Warrant
{¶35} In his second assignment of error, Tutt contends that the trial court erred in denying his motion to suppress and that his convictions should be overturned because the affidavit supporting the search warrant to search his house — the “fruits” of which led to virtually all of the charges against him5 — did not establish sufficient probable cause to justify a search of his residence. We disagree.
{¶36} The
{¶37} In deciding whether probable cause exists for the issuance of a search warrant, the issuing judge must 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
“‘To establish probable cause to search a home, the facts must be sufficient to justify a conclusion that the property that is the subject of the search is probably on the premises to search.‘” State v. Marler, 2d Dist. Clark No. 2007 CA 8, 2009-Ohio-2423, ¶ 26, quoting State v. Freeman, 4th Dist. Highland No. 06CA3, 2006-Ohio-5020, ¶ 13. “The nexus between the items sought and the place to be searched depends upon all of the circumstances of each individual case, including the type of crime and the nature of the evidence.” State v. Carter, 2d Dist. Greene No. 2011 CA 11, 2011-Ohio-6700, ¶ 10, citing Freeman at ¶ 13.
{¶38} The duty of the reviewing court is to ensure that the issuing judge had a “substantial basis” for concluding that probable cause existed. Castagnola at ¶ 35; George at paragraph two of the syllabus. When conducting any after-the-fact scrutiny of an affidavit submitted in support of a search warrant, reviewing courts should accord “great deference” to the issuing judge‘s determination of probable cause; “doubtful or marginal cases should be resolved in favor of upholding the warrant.” George at paragraph two of the syllabus. Neither a trial court nor an appellate court may substitute its judgment for that of the issuing judge by determining de novo whether the affidavit provided sufficient probable cause. Id.
{¶39} The search warrant in this case was issued based on an affidavit submitted by Detective Robert Sauterer, a 17-year veteran of the Cleveland Police Department who worked as a detective in the fifth district vice unit. In his affidavit, Detective Sauterer averred that he had received information from a confidential informant regarding a heroin dealer named “Lloyd” who used “runners” to sell and deliver heroin. Detective Sauterer indicated that based on the information he had received, two “controlled buys” were set up with “Lloyd” at 10812 Amor Avenue — one within a week and one within 72 hours of requesting the search warrant. Prior to each buy, the confidential informant was searched and found to be free of any drugs, currency or other contraband. He was then given a quantity of United States currency from which the serial numbers had been pre-recorded with which to make the buy.
{¶40} Detective Sauterer averred that detectives conducted surveillance in the area of the “buys” and, in connection with the first buy, observed a male later identified as Joshua Miller exit the front door of 10812 Amor Avenue, walk directly to the confidential informant who was waiting outside and sell a quantity of suspected heroin to him. A few days later, a second controlled buy was completed at the same address. Detective Sauterer averred that he contacted the confidential informant and that arrangements were made for the confidential informant to again attempt to
{¶41} In his affidavit, Detective Sauterer stated that he also conducted an Ohio Law Enforcement Gateway (“OHLEG“) computer search and discovered that (1) 10812 Amor Avenue was listed as Miller‘s address and (2) Tutt was reported to live at that address. Detective Sauterer also indicated that photographs of Miller and Tutt were shown to the confidential informant and that the confidential informant positively identified Miller as the man who had sold heroin to him during the first controlled buy and Tutt as “Lloyd‘s partner.”
{¶42} The affidavit further stated that the suspected heroin purchased by the confidential informant was similar in color, texture and general appearance to other material determined to be heroin in the past, that the results of a field test conducted on the suspected heroin obtained by the confidential informant in the second buy were a “presumptive positive” for heroin and that the suspected heroin purchased by the confidential informant in both buys had been submitted to the Cuyahoga County Regional Forensic Science Laboratory for testing but that the police had not yet obtained the results of those tests. Based on his training and experience in the detection, recognition, packaging and selling of controlled substances and dangerous drugs and the other facts included in his affidavit, Detective Sauterer averred that “he has probable cause to believe and does believe” that drug trafficking was occurring at the residence at 18012 Amor Avenue and that illegal drugs and the other items relating to the use, sale or trafficking of such drugs for which a warrant was sought would be found in the residence.
{¶43} Tutt challenges the validity of the warrant to search his residence on two bases. First, he argues that because the affidavit “did not specify the reasons * * * why contraband would likely be present at the residence,” the affidavit was “so conclusory” that it “effectively presented an inference as fact,” a practice prohibited under Castagnola, supra. Second, he contends that the affidavit did not support a finding of probable cause to search 10812 Amor Avenue because it did not establish that either of the two individuals who sold drugs to the confidential informant actually resided at the residence.
{¶44} In Castagnola, the Ohio Supreme Court addressed the role of inferences in determining whether probable cause exists for the issuance of a search warrant. The court indicated that although “affiants may make reasonable inferences within search warrant affidavits,” the issuing judge “‘must be afforded the opportunity to test any significant inference drawn by the affiant‘” and that the facts upon which the affiant makes such inferences must, therefore, be disclosed in the affidavit to permit independent review by the issuing judge. Id. at ¶ 39-40, quoting People v. Smith, 180 Cal.App.3d 72, 87, 225 Cal.Rptr. 348 (1986). The court held that where an undisclosed inference is made in an affidavit, the reviewing court must first determine “whether the inference was ‘so significant as to cross the line between permissive interpretation and usurpation,’ considering both the relevance and the complexity of the undisclosed inference.” Id. at ¶ 56, quoting People v. Caffott, 105 Cal.App.3d 775, 783, 782, 164 Cal.Rptr. 499 (1980). If an inference is “so significant” as to cross that line, the reviewing court must then consider the affiant‘s animus. Id. at ¶ 59.
{¶45} Here, however, Tutt has not identified any “hidden inference” made by Detective Sauterer in his affidavit and presented as empirical fact. Although Detective Sauterer arguably went too far in stating in his affidavit that “he has probable cause to believe” that drug trafficking was occurring at Tutt‘s residence and that evidence of that activity would be found in the residence — since that was not his determination, but rather the determination of the issuing judge to make — he also clearly disclosed the facts from which he drew this conclusion, allowing the issuing judge to make his own independent determination of whether probable cause existed for the issuance of the search warrant. As such, Castagnola does not support invalidating the search warrant here. See also U.S. v. Ventresca, 380 U.S. 102, 108-109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (“[A]ffidavits for search warrants * * * must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. * * * [Whereas] probable cause [cannot] be made out by affidavits which are purely conclusory, stating only the affiant‘s or an informer‘s belief that probable cause exists without detailing any of the ‘underlying circumstances’ upon which that belief is based[,] * * * where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.“); see also State v. Dibble, 133 Ohio St.3d 451, 2012-Ohio-4630, 979 N.E.2d 247, ¶ 24.
{¶46} Following a thorough review of Detective Sauterer‘s affidavit and consideration of the facts set forth therein, we conclude that the issuing judge had a substantial basis for finding probable cause to issue the warrant to search Tutt‘s residence. In two controlled buys, police observed the drug sellers exit the front door of 10812 Amor Avenue and proceed directly to the confidential informant to sell drugs to him. The information regarding the drug sales was “fresh.” The two controlled buys occurred within a week or less of the issuance of the search warrant. Detective Sauterer‘s search of the OHLEG database provided a further link between the residence and alleged drug activity, revealing that Miller, one of the two drug sellers, had listed 10812 Amor Avenue as his residence address and that Tutt, whom the confidential informant had identified as the “partner” of “Lloyd” — i.e., the head of the suspected drug trafficking operation with whom the confidential informant had made arrangements for the drug purchases — also resided at that address. Based on this information, we find that the issuing judge could have reasonably concluded that the drugs that were sold to the confidential informant were previously stored in the house and that there was a fair probability that other drugs or evidence of drug trafficking would be found there. See, e.g., State v. Evans, 8th Dist. Cuyahoga No. 101485, 2015-Ohio-1022, ¶ 21 (affidavit contained
{¶47} Tutt cites no authority in support of his claim that utility records, phone records or other evidence demonstrating that the two individuals who sold drugs to the confidential informant “actually resided at” 10812 Amor Avenue was required in order to establish probable cause to search the residence. The judge issuing the search warrant was not required to determine that Tutt‘s residence was the only possible source of the heroin provided in the transactions. The issuing judge need only have concluded that there was a fair probability that contraband or evidence of a crime would be found inside the residence. See, e.g., Carter, 2011-Ohio-6700, at ¶ 21. Given that Miller and the other unidentified suspect were seen exiting the front door of the residence and immediately approached and sold drugs to the confidential informant, there was no need to confirm that the suspects actually resided at that location to support the issuance of the search warrant; considering the totality of the circumstances, there was a fair probability that illegal drugs or other evidence of drug trafficking activity would be found in Tutt‘s home regardless of whether Miller or the other suspect resided there.
{¶48} Because the record reflects that the issuing judge had a substantial basis for finding a fair probability that drugs and the other items specified in the search warrant would be found in Tutt‘s residence, the trial court did not err in refusing to suppress the evidence seized during the search of Tutt‘s residence. Tutt‘s second assignment of error is overruled.
{¶49} Tutt‘s pleas on Counts 3 and 4 are vacated; his convictions on Counts 3 and 4 are reversed; his remaining convictions are affirmed. Case remanded for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s convictions having been affirmed in part, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentences.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN A. GALLAGHER, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., CONCURS
MELODY J. STEWART, J., CONCURS WITH SEPARATE OPINION
MELODY J. STEWART, J., CONCURRING:
{¶50} I concur with the majority‘s resolution of Tutt‘s case but write separately to further discuss Tutt‘s first assignment of error — principally the court‘s lack of partial compliance with
{¶51} In this case, the trial court was required under
The court: Felonies of the first degree, as indicted in 589749, count 3, trafficking in drugs; count 4, possession of drugs.
Felonies of the first degree carry anywhere from 3 to 11 years in prison in yearly increments and/or a fine up to $20,000. They have a 1-year firearm specification which must be served prior to and consecutive to the base charge of 3 to 11.6
* * *
The court: Do you understand the potential penalties?
The defendant: Yes.
Although not raised by the defense or noted by the majority, the trial court‘s statement that Tutt would receive 3–11 years on the first degree felonies and/or a fine up to $20,000—read literally—meant that Tutt could receive either a prison term, or a fine, or both, on counts 3 and 4. Pursuant to