State v. WinninghamState v. Winningham
Raymond L. Katz, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
O P I N I O N.
{¶1} In one assignment of error, defendant-appellant Lawrence Winningham appeals the decision of the trial court denying his supplemental motion to suppress. Finding no error in the decision below, we affirm.
Facts and Procedural History
{¶2} In 2010, a confidential informant gave law enforcement officials information indicating that Winningham was engaged in drug trafficking. As a result of that information, drug-enforcement officers from the Cincinnati Police Department began monitoring Winningham. Winningham engaged in what the officers would later characterize as “a pattern of drug activity.” Winningham would travel throughout the area making frequent, short stops. While he was unemployed, he was able to secure an apartment and pay for the utilities. Additionally, he frequently spent time with two individuals who were known to have engaged in drug trafficking—one of whom had been a codefendant along with Winningham in a previous federal drug conviction.
{¶3} Police obtained a search warrant in order to place a global positioning system (“GPS”) monitoring device on Winningham’s vehicle. In the affidavit completed by Cincinnati police narcotics officers, they attested that they believed that Winningham was engaged in the trafficking and distribution of marijuana. Officers referenced their confidential informant, who had proven to be reliable in the past. The informant said that Winningham had a supplier in Chicago and that he would travel to Chicago every couple of weeks and return with several pounds of marijuana. The informant learned that the truck that Winningham used had a hidden compartment for concealing contraband.
{¶5} A warrant was issued on June 23, and the GPS tracker was installed on the vehicle two days later. By its terms, the warrant allowed for a surveillance period of 30 days. At the end of the 30-day period, law enforcement returned to renew the search warrant. Through a second affidavit in support of the renewal of the warrant, law enforcement attested that their confidential informant had learned that Winningham had been involved in a civil matter with his ex-wife during the period in question and that, as a result, he had not been able to leave the region for Chicago. The informant further indicated that the matter was resolved and that Winningham would be “traveling for a shipment of marijuana and possible heroin in the near future.” The second warrant, with a similar 30-day limitation, was issued on July 23.
{¶6} On the evening of July 30, Winningham left Hamilton County and traveled to Chicago. Law enforcement officers were notified, and they monitored his progress. Winningham’s vehicle traveled to a motel in the Chicago area, where it remained for six to eight hours before returning to Cincinnati. Winningham left the motel area once during that time, for a period of a few hours. The GPS device was used to follow Winningham’s movement and to determine when he had returned to Ohio. Once he had returned to the state, law enforcement officers initiated a traffic stop. A drug-sniffing dog indicated that contraband was present in the bed of the truck, and marijuana was found hidden under a carpet.
{¶8} Winningham appealed that decision to the Ohio Supreme Court. While the case was pending, the United States Supreme Court issued a decision in United States v. Jones, ___U.S.___, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). In that case, the court determined that attaching a GPS device to a vehicle constitutes a search within the meaning of the Fourth Amendment, and that law enforcement must obtain a warrant prior to installing the unit. Id. at 949-951. In light of that decision, the Ohio Supreme Court remanded Winningham’s case to the trial court for application of the Jones decision. State v. Winningham, 132 Ohio St.3d 77, 2012-Ohio-1998, 969 N.E.2d 251. On remand, the trial court conducted a hearing on Winningham’s supplemental motion to suppress, reviewed the testimony and exhibits from the original motion, and determined that the device had been placed, maintained, and monitored, pursuant to a proper warrant.
{¶9} In one assignment of error, Winningham claims that the trial court erred when it denied his supplemental motion to suppress. He first argues that, since the first anticipatory warrant expired without any triggering events having occurred, a new warrant based only on the same information contained in the original affidavit should not have been issued. We disagree.
{¶10} The
{¶11} In determining the sufficiency of probable cause in an affidavit submitted in support of a search warrant, this court is mindful of the fact that
“[t]he task of the issuing [judge] is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, * * * there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for * * * conclud[ing] that probable cause existed.”
{¶12} In George, the Supreme Court of Ohio set forth the standard of review to be applied in determining whether an affidavit submitted in support of a search warrant sufficiently establishes probable cause to issue the warrant.
In reviewing the sufficiency of probable cause in an affidavit submitted in support of a search warrant issued by a [judge], neither a trial court nor an appellate court should substitute its judgment for that of the [judge] by conducting a de novo determination as to whether the affidavit contains sufficient probable cause upon which that court would issue the search warrant.
George at paragraph two of the syllabus. The court continued, “trial and appellate courts should accord great deference to the [judge’s] determination of probable cause, and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant.” Id.
{¶13} The substance of Winningham’s argument is that, since the second warrant was issued on the same information that was used to justify the first warrant, and since that information was more than 30 days old when the second warrant was sought, the information was stale and was not a suitable basis for the issuance of a second warrant.
{¶14} It is true that the affidavit used to obtain the second search warrant relied on the same information that had been provided when requesting the first one. Within that information was the observation from the confidential informant that Winningham traveled to Chicago once every couple of weeks to obtain marijuana. Had
{¶15} Winningham argues that this explanation is “self-evidently unreliable.” He gives no reason for such a bald assertion, leaving the implication in his brief that law enforcement either fabricated the explanation or knowingly used an untrue statement from their confidential informant. The Ohio Supreme Court has held that “a challenge to the factual veracity of a warrant affidavit must be supported by an offer of proof which specifically outlines the portions of the affidavit alleged to be false, and the supporting reasons for the defendant’s claim.” State v. Roberts, 62 Ohio St.2d 170, 178, 405 N.E.2d 247 (1980). At no point below did Winningham claim that the statement was false. And summarily making the assertion for the first time on appeal is wholly inappropriate.
Crim.R. 41 and The Exclusionary Rule
{¶16} Winningham’s second argument in support of his assignment of error is an attack on the propriety of the warrants under
{¶17} The exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), “will not ordinarily be applied to evidence which is the product of police conduct violative of state law but not violative of constitutional rights.” Kettering v. Hollen, 64 Ohio St.2d 232, 235, 416 N.E.2d 598 (1980). The exclusionary rule is a “judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).
{¶18} A “fundamental” violation of
{¶19} We find that neither the placement of the GPS device on the vehicle nor its search upon its return to Ohio were fundamental violations of
{¶20} We are mindful of the fact that law enforcement in this case began their investigation with weeks of “traditional” police work: talking to informants, observation of the subject, and gathering other information. After compiling information about Winningham’s operation, they presented this information to a judge who reviewed it. That judge determined that the police should be allowed to continue their investigation because they had demonstrated that there was probable cause to believe that Winningham would soon travel to Chicago and return with a large quantity of marijuana. The judge did not give them an open-ended license to monitor Winningham, but allowed such an investigation to continue for 30 days. At the end of that period, the police were required to return to the judge and demonstrate why additional time should be allowed. And all of this occurred before the question of whether a warrant was even required had been answered by the courts. In light of this, we conclude that any violation of
{¶21} Additionally, the actual search of the vehicle was not such that this court must order the marijuana suppressed. In this regard, we agree with the dicta in State v. Ward, 1st Dist. Hamilton No. C-040379, 2005-Ohio-3036. In that case, Ward had driven to Miami, Florida and was returning to Hamilton County with cocaine. Law enforcement personnel had placed a GPS device on his vehicle so that they would be
In this case, for all the same reasons that the officer listed in his affidavit to obtain the warrant, the police had probable cause to believe that the van contained drugs or evidence relating to drugs—the hidden compartment, the coffee grounds, and the great number of miles traveled in a short time all pointed in that direction. And because of the global positioning device, the officers knew that the van had just driven all the way to Miami, stopped for only eight and a half hours, and then come back. * * * They therefore had the right to stop and search the van without a warrant.
{¶22} In the same way, law enforcement in this case had sufficient probable cause to stop Winningham’s vehicle even without a warrant. The information that he made trips to Chicago to obtain marijuana, the information about the secret compartment where the marijuana was stored, his activities and associations that indicated that he was engaged in drug trafficking, and the fact that he had gone to Chicago, stayed no more than eight hours, and returned immediately, all combined to give the police a reasonable, articulable suspicion that Winningham had marijuana in his truck. Therefore, we cannot say that the search of the vehicle violated
{¶23} The search warrants issued in this case were issued with sufficient probable cause, and any violation of
Judgment affirmed.
HILDEBRANDT, P.J., concurs.
DEWINE, J., concurs separately.
DEWINE, J., concurring separately.
{¶24} I concur fully in the majority’s opinion that probable cause existed for the issuance of the second search warrant. I write separately because I analyze the question of whether there was a violation of
{¶25} The warrant at issue purported to authorize two things (1) the installation of the GPS tracking device, (2) and the search of the vehicle for marijuana and other related materials.
{¶26} Here, there is no question that the GPS device was installed within the three days required by
{¶27} One might argue that maintaining the GPS device on the vehicle and gathering information from the GPS device for more than three days violated
{¶28} It is true that the search of the vehicle upon its return to the jurisdiction came some eight days after the issuance of the second search warrant. But as the majority points out, the police had sufficient probable cause to search the vehicle even without a warrant. As we noted in our previous decision in this case, the officers had a “reasonable and articulable suspicion” justifying the stop of the vehicle under the Fourth Amendment once the GPS device alerted them that the vehicle had left the Interstate-275 loop and traveled to Chicago. State v. Winningham, 1st Dist. Hamilton No. C-110134, 2011-Ohio-6229, ¶ 21 (“Winningham I”). After Winningham had been lawfully stopped, a drug-sniffing dog alerted the officers to the likely presence of drugs in the vehicle. This alert together with the other evidence the police had obtained provided probable cause for a search of the vehicle.2 See id. at ¶ 22-23.
{¶29} Thus, in my view the placement and monitoring of the GPS device on Mr. Winningham’s vehicle did not violate
The court has recorded its own entry on the date of the release of this opinion.