State v. Wilson

[Cite as State v. Wilson, 

.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-16-57

        v.

BENNY WILSON,                                             OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR 2015 0498

                                      Judgment Affirmed

                              Date of Decision: June 26, 2017




APPEARANCES:

        Kenneth J. Rexford for Appellant

        Jana E. Emerick for Appellee
Case No. 1-16-57



PRESTON, P.J.

       {¶1} Defendant-appellant, Benny Wilson (“Wilson”), appeals the December

2, 2016 judgment entry of sentence of the Allen County Court of Common Pleas.

For the reasons that follow, we affirm.

       {¶2} This case stems from a controlled drug buy. In December of 2015, a

confidential informant (“CI”) working for the West Central Ohio Crime Task Force

(“Task Force”) went to a known address on West Wayne Street in Lima to meet

with a person from whom he could purchase crack cocaine. Wilson was present at

that address, and he offered to sell crack cocaine to the CI. Wilson was observed

leaving the address on West Wayne Street and traveling to another residence at what

appeared to be 402 North Collett Street. Wilson stayed at that location for a brief

time and then exited and returned to the other residence on West Wayne Street from

which he had come. After the CI met with police, the CI provided them with a

substance that was confirmed to be cocaine. After the controlled-buy operation,

police obtained a warrant to search the residence seemingly located at 402 North

Collett Street, conducted that search, and found additional evidence of drug-related

activity.

       {¶3} On February 11, 2016, the Allen County Grand Jury indicted Wilson

on: Count One of trafficking in heroin in violation of R.C. 2925.03(A)(1), (C)(6)(a),

a felony of the fifth degree; Count Two of trafficking in cocaine in violation of R.C.

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2925.03(A)(1), (C)(4)(a), a felony of the fifth degree; Count Three of trafficking in

cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(a), a felony of the fifth degree;

Count Four of trafficking in cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(a),

a felony of the fifth degree; Count Five of trafficking in cocaine in violation of R.C.

2925.03(A)(1), (C)(4)(a), a felony of the fifth degree; Count Six of possession of

cocaine in violation of R.C. 2925.11(A), (C)(4)(d), a felony of the second degree;

Count Seven of aggravated possession of drugs in violation of R.C. 2925.11(A),

(C)(1)(b), a felony of the third degree; and Count Eight of possession of marijuana

in violation of R.C. 2925.11(A), (C)(3)(c), a felony of the fifth degree. (Doc. No.

4). Count Six included a firearm specification under R.C. 2941.141(A) alleging that

Wilson had a firearm on or about his person or under his control while he committed

the offense. (Id.). Count Six also included a firearm forfeiture specification under

R.C. 2941.1417(A) alleging that Wilson is the owner and/or possessor of a gun that

is contraband or is derived from the commission or facilitation of the offense or was

used or intended for use in the commission or facilitation of the offense. (Id.).

Count Six also included the same firearm forfeiture specification as to another

firearm. (Id.). Count Six further included a money forfeiture specification under

R.C. 2941.1417(A) alleging that Wilson is the owner or possessor of $2,124 in U.S.

currency that was contraband or was property that was derived through the

commission of the offense or was an instrumentality that the offender used or


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intended for use in the commission or facilitation of the offense. (Id.). Counts

Seven and Eight included the same specifications that were included in Count Six.

(Id.).

         {¶4} On February 18, 2016, Wilson entered written pleas of not guilty to

Counts One through Seven of the indictment. (Doc. No. 8). The trial court accepted

Wilson’s pleas. (Doc. No. 11).

         {¶5} Wilson filed a motion to suppress evidence on March 10, 2016, arguing

that the affidavit in support of the warrant did not give rise to probable cause. In

addition, he argued that the warrant’s description of the property was not

constitutionally sufficient or, if it was sufficient, it was inaccurate. (Doc. No. 16).

After a hearing on August 17, 2016, the trial court overruled Wilson’s motion to

suppress evidence on August 30, 2016. (Doc. No. 45).

         {¶6} On May 18, 2016, Wilson filed a motion to exclude the oral testimony

given in support of the warrant. (Doc. No. 32). In that motion, Wilson argues that

the oral testimony of Deputy Sheriff Dana Sutherland (“Sutherland”) must be

excluded because, under Criminal Rule 41(C)(2), if recorded testimony is to be used

in support of a warrant, that testimony must be transcribed, and the transcript must

be made a part of the affidavit prior to the issuance of the search warrant, or the

testimony must be incorporated by reference into the affidavit to be transcribed later.

(Doc. No. 32). As neither of those occurred in this case, Wilson argues that


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Sutherland’s testimony must be suppressed. (Id.). Wilson supplemented that

motion on May 24, 2016. (Doc. No. 36). The State filed a response to that motion

on May 26, 2016. (Doc. No. 37). Wilson filed a reply to the State’s response on

May 31, 2016. (Doc. No. 38). The trial court denied Wilson’s motion to exclude

the oral testimony on June 7, 2016. (Doc. No. 39).1

         {¶7} Wilson appeared for a pre-trial conference and pled no contest to Count

Six with the attendant specifications, as well as to Count Seven with a firearm

specification. (Doc. No. 52, 53). Counts One through Five and Count Eight were

dismissed in accordance with the negotiated plea agreement. (Doc. No. 53). The

trial court accepted Wilson’s no contest pleas and found him guilty of the offenses

to which he pled no contest. (Id.). The trial court sentenced Wilson to five years as

to Count Six and one year as to the firearm specification. (Doc. No. 57). The trial

court further sentenced Wilson to two years in prison as to Count Seven, with each

sentence to be served consecutively for a total of eight years of incarceration.2 (Id.).

The trial court further ordered that $2,124 and two firearms, all identified in

specifications included in Count Six, be forfeited. (Id.). The trial court further




1
  Wilson filed a motion to reconsider the trial court’s denial of his motion to exclude the oral testimony.
(Doc. No. 40). The trial court overruled the motion to reconsider on June 22, 2016. (Doc. No. 41).
2
  We are aware that both Counts Six and Seven included the same firearm specifications. (Doc. No. 57).
Those two specifications merged, and the trial court’s sentencing entry accounted for the specification as part
of Count 6. (Id.).

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ordered that Wilson pay a total of $12,500 in fines as to Counts Six and Seven. (Id.).

The trial court filed its judgement entry of sentence on December 2, 2016. (Id.).

       {¶8} Wilson filed his notice of appeal on December 2, 2016. (Doc. No. 59).

He brings two assignments of error for our review.

                            Assignment of Error No. I

       The Trial Court Erred In Denying the Defense[‘s] Motion To
       Exclude Oral Testimony From The Suppression Hearing.

       {¶9} In his first assignment of error, Wilson argues that the trial court erred

in denying his motion to exclude oral testimony from the suppression hearing.

Specifically, Wilson argues that, under Crim.R. 41(C)(2), the oral testimony is

admissible if it is recorded either by a court reporter or by recording equipment,

transcribed, and made a part of the affidavit in support of the warrant. Wilson

concedes that the evidence in question was “taken down” via recording equipment

and that it was transcribed by the time of the hearing on the motion to suppress

evidence. However, he argues that such needed be done prior to the issuance of the

warrant or, in the alternative, that the testimony needed to be incorporated by

reference into the affidavit, perhaps to be transcribed at a later time. As neither of

these occurred, Wilson argues that suppression was necessary.

       {¶10} Evidentiary rulings are within the broad discretion of the trial court,

and a reviewing court will not overturn a trial court’s evidentiary ruling absent an

abuse of that discretion. State v. Heft, 3d Dist. Logan No. 8-09-08, 2009-Ohio-

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5908, ¶ 62, citing State v. Issa, 

 (2001). An “abuse of

discretion” connotes more than an error in judgment; it implies that a court’s attitude

is unreasonable, arbitrary, or unconscionable. State v. Adams, 

 (1980).

       {¶11} Crim.R. 41(C)(2), in pertinent part, states that testimony of the sort at

issue here is admissible at a hearing if “taken down by a court reporter or recording

equipment, transcribed, and made part of the affidavit.” Crim.R. 41(C)(2).

       {¶12} We begin by emphasizing that there is absolutely nothing in language

of Crim.R. 41(C)(2) that requires that oral testimony be transcribed and made part

of the affidavit prior to the execution the warrant. (See id.).

       {¶13} Crim.R. 41’s purpose is to allow review of the facts upon which the

judge relied in order to issue a warrant. State v. Dreve, 10th Dist. Franklin No.

77AP-383, 

, *4 (Dec. 13, 1977). The rule does not require that the

oral testimony be transcribed immediately and made a part of the affidavit prior to

the issuance of the warrant. 

 Indeed, such a requirement would unduly delay the

issuance of many warrants. 

 It is enough if the oral testimony is transcribed and

made a part of the affidavit prior to the suppression hearing. 

       {¶14} In State v. Shingles, the Ninth District Court of Appeals addressed a

situation in which the trial court suppressed evidence gathered via a search warrant

that had been sworn to before a notary public rather than a judge. State v. Shingles,


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 (9th Dist.1974). Though the court in Shingles held the warrant

to be invalid, it distinguished the fatal defect in that warrant from minor defects not

large enough to require suppression. 

 (noting that a judge’s failure to affix

his signature to a warrant is a “ministerial act” that would not cause the warrant to

fail). In elaborating upon the sorts of defects considered “ministerial,” the court in

Shingles specifically held that “If all that remained to be done would be the

transcription of the recorded testimony, we would call it a ‘ministerial function,’

and permit it to be done.” 

       {¶15} Based on the principles above, we conclude that the trial court did not

act arbitrarily, unreasonably, or unconscionably in denying Wilson’s motion to

exclude the oral testimony at issue. Nothing in the language of the rule requires that

transcription and attachment occur prior to the search, and Dreve dismisses the very

interpretation that Wilson urges is the proper one specifically because that

interpretation would be administratively unworkable and would delay the issuance

of warrants. Wilson concedes in his brief that the “testimony was transcribed by the

time of the hearing” on the motion to suppress evidence. (Appellant’s Brief at 6).

That is sufficient.

       {¶16} For the reasons explained above, Wilson’s first assignment of error is

overruled.




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                            Assignment of Error No. II

         The Trial Court Erred In Denying The Defense[‘s] Motion To
         Suppress.

         {¶17} In his second assignment of error, Wilson argues that the trial court

erred in denying his motion to suppress evidence. Specifically, Wilson argues that

the warrant was defective because it did not accurately and specifically indicate

which residence within the multi-unit building was to be searched. Wilson also

argues that the facts upon which the warrant was issued do not give rise to probable

cause.

         {¶18} A review of the denial of a motion to suppress involves mixed

questions of law and fact. State v. Burnside, 

, 

,

¶ 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.

 See also State v. Carter, 

 (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, 

 (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. 

citing State v. McNamara, 

 (4th Dist.1997).



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       {¶19} When reviewing the sufficiency of probable cause in an affidavit

submitted in support of a search warrant, our duty is simply to “ensure that the

magistrate had a substantial basis for concluding that probable cause existed.” State

v. George, 

 (1989), paragraph two of the syllabus, citing Illinois

v. Gates, 

, 

 (1983). We must not conduct “a de novo

determination as to whether the affidavit contains sufficient probable cause upon

which the court would issue the search warrant,” but rather accord great deference

to the trial court’s determination of probable cause and resolve marginal cases in

favor of upholding the warrant. George at paragraph two of the syllabus. We

recognize that the duty of the issuing official 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 the ‘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.” 

, citing 

.

       {¶20} The Fourth Amendment to the United States Constitution and Article

I, Section 14 of the Ohio Constitution protect individuals against unreasonable

searches and seizures by the government, and they protect privacy interests where

an individual has a reasonable expectation of privacy. State v. Fielding, 10th Dist.

Franklin Nos. 13AP-654 and 13AP-655, 

, quoting Smith v.


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 U.S. 735, 740, 99S.Ct. 2577 (1979). An expectation of privacy is

protected where an individual has manifested a subjective expectation of privacy

and that expectation is one that society recognizes as reasonable. 

 citing 

, citing Katz v. United States, 

 (1967) (Harlan, J.,

concurring). While the Fourth Amendment does not specifically provide that

unlawful searches and seizures will result in the suppression of ill-gotten evidence,

the United States Supreme Court has held that the exclusion of evidence is an

essential part of the Fourth Amendment. State v. Jenkins, 3d Dist. Union No. 14-

10-10, 

, citing Mapp v. Ohio, 

, 

(1961) and Weeks v. United States, 

, 

 (1914).

       {¶21} 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. Id. at 325, citing U.S. v. Leon, 

, 

 (1984). Exclusion remains proper, however, where the magistrate or

judge who issued the warrant was misled by information in the affidavit that the

affiant knew was false or would have known was false if not for reckless disregard

of the truth, where the magistrate wholly abandoned his judicial function in issuing

the warrant, where the affidavit is “so lacking in indicia of probable cause as to

render belief in its existence entirely unreasonable,” or where the warrant is so


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facially deficient that officers cannot reasonably presume its validity. 

, citing 

.

       {¶22} The standard that must be applied in determining the sufficiency of a

warrant’s identification of the place to be searched is that the description must be

such that “the officer with a search warrant can with reasonable effort ascertain the

identity of the place intended.” State v. Pruitt, 

 (11th

Dist.1994) quoting Steele v. United States, 

, 

 (1925).

The determinative factor is not whether the description is technically accurate in

every detail; rather, it is whether the description enables the executing officer to

locate the premises with reasonable effort, as well as whether there is any reasonable

probability that a premises other than the one intended might be searched by

mistake. Id. at 261-262.

       {¶23} In this case, the hearing pertinent to Wilson’s motion to suppress

evidence took place on August 17, 2016. (Aug. 17, 2016 Tr. at 1). At that hearing,

the State called Sutherland to the stand. (Id. at 8). Sutherland testified that police

began an investigation into the property at the corner of West Wayne Street and

North Collett Street in December of 2015 because the Task Force carried out a

controlled drug buy using a CI. (Id. at 10). During that controlled buy, the Task

Force observed the CI as he traveled to a known address on West Wayne Street to

meet with a person from whom he could purchase crack cocaine. (Id. at 10).


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Sutherland testified that Wilson was at that known address and offered to make the

sale. (Id.). Sutherland testified that police observed Wilson leaving the house and

walking to 402 North Collett Street, entering the building through the door facing

“directly into the intersection under a covered porch with cedar siding.” (Id.).

Sutherland asserted that Wilson stayed at that location for a brief time before leaving

and returning to the place from which he came. (Id. at 11). Sutherland testified

that, when the CI met with police after the controlled buy, the CI provided them

with a substance that was confirmed to be cocaine. (Id.).

       {¶24} Sutherland next testified that, after the controlled buy, he

photographed the numbers “402” on the west side of the property and subsequently

determined, after examining the Allen County Auditor’s records, that the property

at the corner of Wayne Street and Collett Street is 402 North Collett Street—a multi-

unit structure. (Id. at 12). Sutherland then testified that he and Investigator Pugh

(“Pugh”) drove to the house and photographed it from both Wayne Street and Collett

Street. (Id. at 13). He testified that no addresses were marked on the cedar siding

under the covered porch. (Id.). Sutherland identified State’s Exhibit 3 as a photo

of the west side of the property. (Id. at 14); (State’s Ex. 3). He identified State’s

Exhibit 4 as depicting the rear portion of the property. (Aug. 17, 2016 Tr. at 14);

(State’s Ex 4). Sutherland further testified that State’s Exhibit 5 depicts the door




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through which Wilson entered and later exited the residence. (Aug. 17, 2016 Tr. at

16); (State’s Ex. 5).

       {¶25} Sutherland testified that he then prepared an affidavit and a search

warrant for 402 North Collett Street, both of which he presented to a judge. (Aug.

17, 2016 Tr. at 19). Sutherland identified State’s Exhibit 1 as the affidavit for the

search warrant. (Id. at 20); (State’s Ex. 1). That affidavit generally contains the

following information:

       {¶26} The affiant, a Deputy Sheriff with the Allen County Sheriff’s Office,

had been so employed since 2003. (State’s Ex. 1). He was assigned to the Task

Force and had training related to drug trafficking and manufacturing, in addition to

which he had participated in controlled drug buys. A CI indicated that he could

purchase cocaine from persons in Lima and agreed to assist the Task Force by

participating in controlled drug buys. The same CI had participated in previous

controlled drug buys and had provided police with reliable information. During the

week of December 14, 2015, the Task Force carried out a controlled drug buy

according to its standard procedure. The CI traveled to a known address on West

Wayne Street to purchase cocaine. Though the original suspect was not present, a

then-unknown African-American male was present and offered to sell cocaine to

the CI. This individual then exited the address on West Wayne Street and walked

to another property at 402 North Collet Street, which he entered. The individual


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stayed at that location briefly and then exited before returning to the address from

which he had come and then providing the CI with cocaine. (Id.).

           {¶27} Sutherland further testified that, in addition to the information in

State’s Exhibit 1, he also presented the issuing judge with recorded testimony to

support the warrant. (Aug. 17, 2016 Tr. at 20). He identified State’s Exhibit 2 as

an audio recording of the hearing at which he provided the judge with additional

information. (Id. at 21); (State’s Ex. 2). That recording was then played for the trial

court. (Aug. 17, 2016 Tr. at 24). Sutherland identified State’s Exhibit 9 as a

transcript accurately reflecting the hearing recorded on State’s Exhibit 2. (Id. at 24-

25).3 After hearing Sutherland’s testimony, the judge found probable cause. (Id.).

           {¶28} Sutherland, at the August 17, 2016 hearing, went on to testify that the

warrant identified the property to be searched as “the property located at 402 N.

Collett Street, Lima” and that the warrant later indicated that “the property is more

specifically described as a yellow two (2) story multifamily dwelling with white

trim,” as well as a “black asphalt roof located in the northeast corner of W. Wayne

Street and N. Collett Street.” The warrant also described the property door as

“located on a covered porch with cedar siding facing directly into the intersection.”

(Aug. 17, 2016 Tr. at 25); (State’s Ex. 1).




3
    The testimony taken during that hearing is duplicative of other testimony we discuss. (See State’s Ex. 9).

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Case No. 1-16-57


         {¶29} Sutherland asserted that, once he obtained a warrant but prior to

conducting the search, he met with the SWAT team and showed SWAT team

members pictures of the door through which they should enter the property—a door

on a covered porch with cedar siding. (Aug. 17, 2016 Tr. at 27). Sutherland then

accompanied the SWAT team to execute the warrant. (Id. at 30). He testified that

he observed the police go on to the front porch area and enter through the door that

was described to them. (Id. at 30). Sutherland averred that police were able to

properly execute the warrant based on the property description in the warrant. (Id.

at 31). He asserted that they did not enter any residence other than the one intended.

(Id.).

         {¶30} Sutherland testified that, after the SWAT team had entered the

residence, he photographed the entry door and, in doing so, he saw the number

“864” above a mailbox. (Id.). This was the first indication that the address of the

property was anything other than 402 North Collett Street, as police believed. (Id.

at 32). Sutherland testified that further investigation revealed that the address of the

location was, in fact, 864 West Wayne Street rather than 402 North Collett Street.

(Id. at 32). Sutherland testified that he never believed that there was any probability

that the wrong residence would be searched, and he emphasized again that the

correct residence was the only one searched. (Id. at 33).




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       {¶31} Wilson argues that the property description in the warrant was

insufficient. We disagree. In State v. Pruitt, the Eleventh District Court of Appeals

addressed a situation in which police had a search warrant permitting them to search

a premises described as:

       2101 Westlawn S.W., a multi-unit apartment, single level yellow in

       color. The unit is the second apartment from a large parking lot

       located on the east side of Delaware S.W. The unit is marked 2101

       on the front of the building. Also the unit is North of the large parking

       lot.

. The defendant argued that this description was insufficient because it

named the wrong street. 

. The court ultimately found that the description

of the property was adequate, noting that the house number was correct even though

the street name was not and that the architectural description of the premises was

accurate. 

. The court also found it significant that, because the same

officer who applied for the warrant also executed it, the chance of a mistaken search

was unlikely. 

       {¶32} Facts similar to those in Pruitt exist here. The address in this case was

incorrect; however, the architectural description of the premises was accurate, as

was the description of their physical location. Further, because the same officer

who applied for the warrant was present for the execution of it, and he showed the


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SWAT team a photo of the entrance and specifically advised them how to enter the

residence to conduct the search, a search of the wrong location was rendered highly

unlikely. Police searched only the location they intended to search.

       {¶33} Wilson argues that the affidavit in support of the warrant does not give

rise to probable cause. We disagree. In State v. Metzger, we were presented with a

set of facts in which controlled buys were conducted at a home on South Canal

Street in Delphos, Ohio. State v. Metzger, 3d Dist. Van Wert Nos. 15-05-15 and

15-05-17, 

. The CI located a suspected drug dealer and gave

him money with the understanding that the dealer would leave the residence,

procure the drugs, and return with them. Id. at ¶ 3. The individual left his residence

and traveled to the defendant’s home on South Canal Street, remained there for

approximately five minutes, and then returned with the drugs. Id. When Metzger

attacked the affidavit in support of the warrant to search his home, we upheld the

warrant, noting that the record indicated that confidential informants had conducted

controlled buys from a man who had traveled to the Canal Street address to obtain

drugs. Id. at ¶ 29. We also noted that the drug seller was seen entering the residence

for which the warrant was issued. Id.

       {¶34} Similar facts are now before us. The CI met Wilson, and Wilson

traveled to a house on the corner of West Wayne Street and North Collett Street,

stayed there for a brief time, and returned with drugs. The record establishes that


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Wilson entered the very place police searched. Based on Metzger, we conclude that

the warrant at issue here was supported by probable cause.

       {¶35} For the reasons explained above, Wilson’s second assignment of error

is overruled.

       {¶36} 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

ZIMMERMAN and SHAW, J.J., concur.

/jlr




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