State v. Stonitsch

[Cite as State v. Stonitsch, 

.]




                    IN THE COURT OF APPEALS
                FIRST APPELLATE DISTRICT OF OHIO
                     HAMILTON COUNTY, OHIO



STATE OF OHIO,                                  :   APPEAL NO. C-200174
                                                    TRIAL NO. B-1803702-A
        Plaintiff-Appellee,                     :

                                                :     O P I N I O N.
  VS.
                                                :

JACOB STONITSCH,                                :

      Defendant-Appellant.                      :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed, Convictions Vacated, and Cause Remanded

Date of Judgment Entry on Appeal: August 27, 2021


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Keith Sauter,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Greg A. Cohen for Defendant-Appellant.
                    OHIO FIRST DISTRICT COURT OF APPEALS



BERGERON, Judge.

       {¶1}    This is a companion case to State v. Martin, 1st Dist. Hamilton No. C-

200067, 

, in which we reversed the trial court’s judgment overruling

the defendant’s motion to suppress. Appellant Jacob Stonitsch was a co-defendant

with Abbey Martin, and the search in Martin is the same search at issue here. Given

the indistinguishable facts, we adhere to our recent decision in Martin and reach an

identical result today.   We hold application of the good faith exception to be

erroneous on these facts, reverse the trial court’s judgment overruling the

defendant’s motion to suppress, and remand for the granting of Mr. Stonitsch’s

suppression motion.

                                           I.

       {¶2}    The facts set forth in State v. Martin are the same at hand in this case,

and we presume familiarity with that opinion. We provide a brief summary here for

convenience.

       {¶3}    Between September 2015 and January 2017, Butler County police

investigated Mr. Stonitsch for potential drug trafficking in West Chester, Ohio. After

15 months of thorough and continuous investigation, police submitted an affidavit

for a warrant to search his residence (shared with his girlfriend, Ms. Martin). This

affidavit recounted the wide variety of investigative techniques employed by Butler

County officers to gather their evidence and establish probable cause, including use

of confidential informants, interviews of known associates, anonymous tips, cell

phone pings, and a GPS tracker placed on Mr. Stonitsch’s vehicle. A search of the

residence resulted in drug charges, and Mr. Stonitsch eventually pled guilty to

attempted trafficking of marijuana (a first-degree misdemeanor).

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       {¶4}    Several months after the conclusion of the Butler County case, in

March 2018, a Butler County officer involved with the investigation notified a

Hamilton County detective that Mr. Stonitsch and Ms. Martin had moved to Colerain

Township. The Butler County officer provided his Hamilton County counterpart

with a copy of the affidavit that he used to procure the search warrant. But rather

than launch a new probe of possible trafficking in Colerain Township, the Hamilton

County detective failed to undertake a similar investigation. No surveillance of the

couple’s new home occurred, no tips or information implicating either individual in

drug activity materialized, and no efforts were made to track Mr. Stonitsch’s phone

or to monitor the whereabouts of his vehicle. Then, on June 19, 2018, the Hamilton

County detective executed a trash pull from Mr. Stonitsch and Ms. Martin’s

residence.    The trash pull revealed loose marijuana leaves, a marijuana cigar,

“multiple” empty vacuum-sealed plastic bags, and two cut straws—all evidence that

the detective later conceded comported with personal drug use.

       {¶5}    Armed with this trash-pull evidence, the Hamilton County detective

composed a 34-paragraph affidavit for a warrant to search the couple’s home. Out of

these 34 paragraphs, however, 28 were copy-pasted word-for-word from the old

Butler County affidavit. At the time the Hamilton County detective submitted this

affidavit, the Butler County information was from 17 to 33 months old. Nonetheless,

a warrant was issued, which officers executed at the home on June 26, 2018. The

state subsequently charged Mr. Stonitsch and Ms. Martin with trafficking in hashish,

possession of hashish, trafficking in marijuana, and possession of marijuana. Both

co-defendants filed motions to suppress, which the trial court denied on the basis of

the good faith exception to the exclusionary rule after concluding that probable cause

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                    OHIO FIRST DISTRICT COURT OF APPEALS



was wanting. Mr. Stonitsch pled no contest and now appeals, challenging the trial

court’s denial of his motion to suppress in a single assignment of error.

                                           II.

       {¶6}   This appeal raises identical issues to that of Mr. Stonitsch’s co-

defendant, Ms. Martin. In her appeal, captioned State v. Martin, we explained that

the 17-to-33-month-old Butler County information fell “far beyond the bounds

established by other Ohio courts” for stale evidence. Martin, 1st Dist. Hamilton No.

C-200067, 

. See, e.g., State v. Gales, 

, 

 (8th Dist.2001) (“Given the perishable nature of the contraband

at issue, there is no reason to believe that one might find heroin at the address three

months after this alleged admission and single, isolated surveillance[,] … probable

cause has grown stale.”). Although the old evidence might have been “refreshed”

(i.e., rendered not stale) by present, corroborative evidence of drug trafficking

behavior, we deemed the “slim contents of the trash pull” insufficient to provide

corroboration here. Martin at ¶ 16. Having determined that the 28 paragraphs of

Butler County detail presented stale information—and thus never should have been

included in the affidavit in the first place—we removed that evidence from our

consideration and evaluated “probable cause based on what remain[ed]: the trash

pull.” Id. at ¶ 18, citing State v. Weimer, 8th Dist. Cuyahoga No. 92094, 2009-Ohio-

4983, ¶ 30; State v. Goble, 

, 

, ¶ 11-13 (6th Dist.);

United States v. Abernathy, 

 (6th Cir.2016). We concluded that

without the stale Butler County evidence, the Hamilton County detective’s affidavit

fell “far below a showing of probable cause.” Id. at ¶ 24.




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       {¶7}   Next, we considered whether the trial court had properly applied the

good-faith exception. Our inquiry focused on the third exception to the good-faith

exception: scenarios where “police have relied on a warrant based on an affidavit so

lacking indicia of probable cause that no official could reasonably believe in its

existence[.]” State v. Hampton, 1st Dist. Hamilton No. C-080187, 

. See State v. George, 

, 

 (1989) (same);

United States v. Leon, 

, 

, 

 (1984)

(same). Surveying established Ohio and federal precedent, we determined that “[a]

reasonably well-trained officer should have known that information obtained from a

drug-trafficking investigation in another county—conducted 17 to 33 months ago and

concerning a different residence—was too stale to justify issuance of a warrant for a

new residence without meaningful, present corroboration. Likewise, a reasonably

well-trained officer should have known that a marijuana cigar, some marijuana

leaves, two straws, and a couple of plastic bags—left on the curb and accessible to the

public for an unknown amount of time—were insufficient to establish probable cause

on their own.” Martin at ¶ 29. (Internal citations omitted.) Finding this affidavit to

be “so lacking in indicia of probable cause as to render official belief in its existence

entirely unreasonable,” we concluded that the good faith exception did not apply and

reversed the judgment of the trial court. State v. Castagnola, 

, 2015-

Ohio-1565, 

; Martin at ¶ 34.

       {¶8}   Mr. Stonitsch pursued his appeal independently of Ms. Martin, but

now raises the same assignment of error, contending that the trial court improperly

applied the good-faith exception to deny his motion to suppress. This court held oral

arguments for Mr. Stonitsch’s appeal after Martin’s release and invited the parties to

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identify any distinguishing features that could support a different outcome here.

Finding no basis for distinction, we hereby adopt the reasoning outlined in Martin

and sustain Mr. Stonitsch’s sole assignment of error.

       {¶9}   Our review of the briefs and arguments in this appeal only enhances

the conclusion we reached in Martin. Mr. Stonitsch’s appellate brief emphasizes the

additional point that the Hamilton County detective neglected to execute the search

warrant until June 26, a full week after conducting the trash pull. This means that,

at best, he had evidence of personal drug use associated with the residence at some

point one to two weeks prior to the search. This evidence simply does not “support[]

a conclusion of the probable presence of contraband” at the property “on the day of

the search.” See Weimer, 8th Dist. Cuyahoga No. 92094, 

, at ¶ 26.

See also Abernanthy, 

 (“The inability to tell when drugs were last in

the home diminishes any inference that drugs were still in the home.”).

       {¶10} We are further concerned by the revelation in this appeal that one of

the precious few pieces of newer evidence contained in the affidavit—Mr. Stonitsch’s

2018 conviction—was presented to the issuing judge in an arguably misleading

fashion. The affidavit conveys that a “search of Jacob N. Stonitsch revealed felony

trafficking in drugs and possession of drugs. Jacob N. Stonitsch was convicted of

attempted trafficking in marijuana in February of 2018.” (Emphasis added.) But at

oral arguments, both parties agreed that the 2018 conviction was a misdemeanor.

The state could identify no other convictions, let alone a conviction for felony

trafficking. This renders the affidavit’s language surrounding the 2018 conviction

arguably misleading, further bolstering our conclusion about the unreasonableness




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                     OHIO FIRST DISTRICT COURT OF APPEALS



of reliance on the warrant. See Weimer at ¶ 30-32 (the law requires removal of

misleading statements from the officer’s affidavit).

       {¶11} Confronted with the absence of present drug-trafficking evidence in

this case, the state urges us to consider Mr. Stonitsch’s identity itself—specifically,

his identity as an individual previously charged with drug trafficking—as present

corroboration sufficient to revive stale evidence. We cannot accept this logic, which

dances dangerously close to the sentiment: “Once a drug dealer, always a drug

dealer.” The state cannot wield a years-old drug investigation (that yielded only a

misdemeanor conviction) as a scarlet letter, obviating its burden to produce a

present showing of probable cause. See Sgro v. United States, 

, 

, 

 (1932) (“[I]t is manifest that the proof must be of facts so

closely related to the time of the issue of the warrant as to justify a finding of

probable cause at that time.”). Were we to endorse this reasoning, we risk creating

two tiers of Fourth Amendment protection: one for individuals without prior drug

offenses (against whom the state must gather present evidence of probable cause),

and another for those with a prior drug offense (for whom stale evidence will suffice).

“The Constitution does not allow such a polarization of Fourth Amendment rights.”

State v. Warren, 

, 

 (1st Dist.1998).

       {¶12} For all the foregoing reasons, and as explained further in Martin, we

sustain Mr. Stonitsch’s assignment of error and reverse the trial court’s judgment

denying his motion to suppress.        His convictions are vacated and the cause

remanded to the trial court with instructions that his motion to suppress be granted.

                       Judgment reversed, convictions vacated, and cause remanded.

BOCK, J., concurs.

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                    OHIO FIRST DISTRICT COURT OF APPEALS



MYERS, P.J., dissents.

MYERS, J., dissenting.


       {¶13} I respectfully dissent. For the reasons stated in my dissent in State v.

Martin, 1st Dist. Hamilton No. C-200067, 

, I would hold that the

trial court did not err in finding that the good-faith exception to the exclusionary rule

applied. Therefore, I would affirm the trial court’s denial of the motion to suppress.


Please note:

       The court has recorded its entry on the date of the release of this opinion




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