[Cite as State v. Ball,
2023-Ohio-235.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vsCase No. 2022 CA 00014
DONTAE BALL
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 21 CR 00056
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 27, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM C. HAYES WILLIAM T. CRAMER
PROSECUTING ATTORNEY 470 Olde Worthington Road
ROBERT N. ABDALLA Suite 200
ASSISTANT PROSECUTOR Westerville, Ohio 43082
20 South Second Street
Newark, Ohio 43055
Licking County, Case No. 2022 CA 00014 2
Wise, J.
{¶1} Defendant-Appellant Dontae Ball appeals the judgment of the Licking
County Court of Common Pleas denying the motion to suppress evidence and his
sentence. Appellee is State of Ohio. The relevant facts leading to this appeal are as
follows.
STATEMENT OF THE FACTS AND CASE
{¶2} On February 4, 2021, the Licking County Grand Jury indicted Appellant on
one count of Aggravated Possession of Methamphetamine in violation of
R.C.§2925.11(A)(C)(1)(e), one count of Aggravated Trafficking in Methamphetamine in
violation of R.C. §2925.03(A)(2)(C)(1)(f), one count of Possession of Fentanyl-Related
Compound in violation of R.C. §2925.11(A)(C)(11)(g), Trafficking in Fentanyl-Related
Compound in violation of R.C. §2925.03(A)(2)(C)(9)(h), one count of Possession of
Cocaine in violation of 2925.11(A)(C)(4)(b), and one count of Trafficking in Cocaine in
violation of R.C. §2925.03(A)(2)(C)(4)(c). The indictment included a Forfeiture
Specification (U.S. currency) in violation of R.C. §2981.02(A)(1)(b) and §2941.1417(A), a
Forfeiture Specification (vehicle) in violation of R.C. §2981.02(A)(1)(A) and
§2941.1417(A), and a Major Drug Offender Specification in violation of R.C.
§2941.1410(B).
{¶3} Appellant pled not guilty to all charges.
{¶4} On March 17, 2021, Appellant filed a Motion to Suppress evidence found in
a search of a storage unit. Appellant’s Motion to Suppress challenged the affidavit in the
warrant application was vague, unreliable and generally insufficient overall to support a
finding of probable cause.
Licking County, Case No. 2022 CA 00014 3
{¶5} On March 24, 2021, Appellee filed a Memorandum in Opposition.
{¶6} On June 14, 2021, the trial court denied Appellant’s Motion to Suppress.
{¶7} On June 24, 2021, Appellant filed a Motion to Reconsider Motion to
Suppress.
{¶8} On June 25, 2021, the trial court denied Appellant’s Motion to Reconsider.
{¶9} On February 23, 2022, the matter proceeded to a jury trial.
{¶10} On February 25, 2022, the jury found Appellant guilty on all six counts. The
trial court found counts one and two merged for sentencing purposes, counts three and
four merged for sentencing purposes, and counts five and six merged for sentencing
purposes. The trial court then imposed a maximum indefinite mandatory term of eleven
to sixteen and a half years on counts two and four to run concurrently, and a maximum
term of eighteen months on count six to run consecutively to counts two and four. The
trial court imposed an additional, mandatory consecutive term of four years for the major
drug offender specification on count four for an aggregate total of sixteen and a half to
twenty-two years.
ASSIGNMENTS OF ERROR
{¶11} Appellant filed a timely notice of appeal. He herein raises the following two
Assignments of Error:
{¶12} “I. APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO
BE FREE OF UNREASONABLE SEARCHES AND SEIZURES WAS VIOLATED WHEN
THE TRIAL COURT REFUSED TO SUPPRESS EVIDENCE ARISING FROM A
SEARCH WARRANT THAT WAS NOT SUPPORTED BY PROBABLE CAUSE.
Licking County, Case No. 2022 CA 00014 4
{¶13} “II. INDEFINITE PRISON TERMS IMPOSED UNDER THE REAGAN
TOKES LAW VIOLATE THE JURY TRIAL GUARANTEE, THE DOCTRINE OF
SEPARATION OF POWERS, AND DUE PROCESS PRINCIPLES UNDER THE
FEDERAL AND STATE CONSTITUTIONS.”
I.
{¶14} In Appellant’s first Assignment of Error, Appellant argues the trial court erred
in finding that Trooper Hendricks impermissibly extended the traffic stop. We disagree.
{¶15} The Fourth Amendment to the United States Constitution and Section 14,
Article I, Ohio Constitution, prohibit the government from conducting unreasonable
searches and seizures of persons or their property. See Terry v. Ohio, 392 U.S. 1,
88
S.Ct. 1868,
20 L.Ed.2d 889 (1968); State v. Andrews (1991),
57 Ohio St.3d 86, 87,
565
N.E.2d 1271 (1991).
{¶16} Appellate review of a motion to suppress is a mixed question of law and
fact. State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372,
797 N.E.2d 71, ¶8. During
a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in
the best position to resolve questions of fact and to evaluate witness credibility. State v.
Brooks,
75 Ohio St.3d 148, 154,
1996-Ohio-134,
661 N.E.2d 1030. A reviewing court is
bound to accept the trial court’s findings of fact if they are supported by competent,
credible evidence. State v. Medcalf,
111 Ohio App.3d 142,145,
675 N.E.2d 1268 (4th
Dist.1996). Accepting these facts as true, the appellate court must independently
determine as a matter of law, without deference to the trial court’s conclusions, whether
the trial court’s decision meets the applicable legal standard. State v. Williams, 86 Ohio
Licking County, Case No. 2022 CA 00014 5
App.3d 37, 41,
619 N.E.2d 1141 (4th Dist.1993), overruled on other grounds, State v.
Gunther, 4th Dist. Pickaway No. 04CA25,
2005-Ohio-3492, ¶16.
{¶17} Three methods exist to challenge a trial court’s ruling on a motion to
suppress. First, appellant may challenge the trial court’s findings of facts. State v.
Fanning, 1 Ohio St.3d 19, 20,
437 N.E.2d 583 (1982). Second, appellant may argue the
trial court failed to apply the appropriate test or correct law to the findings of fact. In that
case, the appellate court can reverse the trial court for committing an error of law. Williams
at 41. Third, appellant may argue the trial court incorrectly decided the ultimate issue
raised in the motion to suppress. When addressing the third type of challenge, an
appellate court must independently determine, without deference to the trial court’s
conclusion, whether the facts meet the appropriate legal standard in the given case
(Citation omitted). State v. Curry,
95 Ohio App.3d 93, 96,
641 N.E.2d 1172 (8th Dist.1994).
{¶18} In the case sub judice, Appellant argues that there was not probable cause
for the issuance of the search warrant for Appellant’s storage unit. In authorizing a search
warrant, the issuing magistrate’s duty is to determine whether “there is a fair probability
that contraband or evidence of a crime will be found in a particular place ….” Illinois v.
Gates, 462 U.S. 213, 238,
103 S.Ct. 2317,
76 L.Ed.2d 527 (1983); State v. Jones,
143
Ohio St.3d 266,
2015-Ohio-483,
37 N.E.3d 123, ¶13. “[T]he duty of a reviewing court is
simply to ensure that the magistrate had a ‘substantial basis for … conclud[ing]’ that
probable cause existed.” Gates at 238-239, quoting Jones v. United States,
362 U.S. 257,
271,
80 S.Ct. 725,
4 L.Ed.2d 697 (1960); State v. Castagnola,
145 Ohio St.3d 1, 2015-
Ohio-1565,
46 N.E.3d 638, ¶35. In reviewing whether a search warrant has been issued
Licking County, Case No. 2022 CA 00014 6
upon probable cause, courts must examine the totality of the circumstances. State v.
Jones,
143 Ohio St.3d 266,
2015-Ohio-483,
37 N.E.3d 123, ¶15.
{¶19} Trial courts and 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.” State v. George, 45 Ohio St.3d 325,
544 N.E.2d 640 (1989), paragraph two of the syllabus; State v. Jones,
143 Ohio St.3d
266,
2015-Ohio-483,
37 N.E.3d 123, ¶14.
{¶20} Appellant specifically argues that the information in the affidavit from
confidential sources was unreliable and there was no nexus between the storage unit and
illegal activity.
{¶21} Appellant argues three confidential sources provided useless information
which was not demonstrably reliable, and no nexus could be drawn between the drugs
and the storage unit.
{¶22} The affidavit to the search warrant discussed the following.
{¶23} In July of 2020, the first source informed the Central Ohio Drug Enforcement
Task Force (“CODE TF”) that Appellant was involved in the distribution of large amounts
of narcotics by transporting drugs from the Columbus area to the Newark area and storing
them in his apartment.
{¶24} In December of 2020, CODE TF received a call from an individual claiming
to be Appellant’s relative stating he was acting crazy and selling drugs again.
{¶25} In January of 2021, CODE TF was informed from another confidential
source that Appellant was in a “slick looking Infinity SUV” and “doing big things.”
Licking County, Case No. 2022 CA 00014 7
{¶26} CODE TF Detectives observed Appellant enter a storage unit D-20 at the
79 mini storage unit. Six minutes later the detectives watched him exit. The storage unit
had a master lock on the door.
{¶27} At a traffic stop Appellant gave consent to search his vehicle. No contraband
was found, but he did have a key to a master lock on his key ring. During the traffic stop,
Appellant denied entering the storage unit at 79 mini storage, instead lying about going
to Taco Bell.
{¶28} CODE TF canine officer Vogelmeier arrived at the storage unit. Upon
performing a free air sniff, Officer Vogelmeier’s canine alerted to the presence of narcotics
on the doors of the building in which D-20 is located.
{¶29} Under a totality of the circumstances, the affidavit contained sufficient
information for the issuing judge to find there was probable cause to issue a search
warrant.
{¶30} Appellant’s first Assignment of Error is overruled.
II.
{¶31} In Appellant’s second Assignment of Error, Appellant challenges the
constitutionality of the Reagan Tokes Act, which codified hybrid indefinite prison terms for
first- and second- degree felonies. We disagree.
{¶32} This Court has previously found this type of challenge to not yet be ripe for
review. State v. Downard, 5th Dist. Muskingum, CT2019-0079, 2020-Ohio-4227, appeal
allowed,
160 Ohio St.3d 1507,
2020-Ohio-6835,
159 N.E.3d 1152. However, the Ohio
Supreme Court found that the issue of the constitutionality of an indeterminate sentence
Licking County, Case No. 2022 CA 00014 8
imposed under R.C. §2967.271 ripens at the time of sentencing, and that the law may be
challenged on direct appeal. State v. Maddox,
2022-Ohio-764, ¶21.
{¶33} Recently, in State v. Burris, 5th Dist. Guernsey No. 21CA000021, 2022-
Ohio-1481, and State v. Ratliff, 5th Dist. Guernsey No. 21CA000016, 2022-Ohio-1372,
this Court set forth analysis regarding Appellant’s arguments.
Violation of Right to Trial by Jury
{¶34} Appellant argues that the Department of Rehabilitation and Correction
(“DRC”) unilaterally conducts fact finding which may extend an inmate’s sentence, and
that this violates Appellant’s right to trial by jury citing Apprendi v. New Jersey, 530 U.S.
466,
120 S.Ct. 2348,
147 L.Ed.2d 435 (2000). We disagree.
{¶35} In Apprendi, a jury convicted the defendant of a gun crime that carried a
maximum prison sentence of 10 years. Id. However, a judge imposed a longer sentence
pursuant to a statute providing him authorization.
Id. The judge found, by a
preponderance of the evidence, that the defendant had committed the crime with racial
bias. Apprendi held this scheme unconstitutional.
Id. “[A]ny fact that increases the penalty
for a crime beyond the prescribed statutory maximum,” the Court explained, “must be
submitted to a jury, and proved beyond a reasonable doubt” or admitted by the defendant.
Id. A State may not avoid this restraint on judicial power by simply calling the process of
finding new facts and imposing a new punishment a judicial “sentencing enhancement.”
Id., at 495,
120 S.Ct. 2348. “[T]he relevant inquiry is one not of form, but of effect—does
the required [judicial] finding expose the defendant to a greater punishment than that
authorized by the jury's guilty verdict?”
Id., at 494,
120 S.Ct. 2348.
Licking County, Case No. 2022 CA 00014 9
{¶36} In Alleyne v. United States, 570 U.S. 99,
133 S.Ct. 2151,
186 L.Ed.2d 314
(2013), the United States Supreme Court addressed mandatory minimum sentences and
the Sixth Amendment. In Alleyne, the jury relied on victim testimony of an armed robbery
that one of the perpetrators possessed a gun. The trial court relied on the same testimony
to determine that either Alleyne or his accomplice brandished a gun. The testimony was
the same, but the findings were different. The jury found that Alleyne possessed a gun,
but made no finding with regard to whether Alleyne brandished a gun. The court, however
determined that the gun was brandished. The Supreme Court reviewed the statutory
punishment structure, which included a mandatory minimum sentence of five years if a
crime of violence was committed while the offender carried a firearm, seven years if the
firearm was brandished, and ten years if the firearm was discharged during the crime. 18
U.S.C. 924(c)(1)(A). The crime was otherwise punishable by a term of imprisonment not
exceeding 20 years. 18 U.S.C.1951 (a). The Court held that where facts were not found
by a jury that enhanced the mandatory minimum penalty for a crime, the Sixth
Amendment was violated. Specifically, “[b]ecause mandatory minimum sentences
increase the penalty for a crime, any fact that increases the mandatory minimum is an
‘element’ that must be submitted to the jury.”
Alleyne at 103. See, State v. Fort, 8th Dist.
Cuyahoga No. 100346,
17 N.E.3d 1172,
2014-Ohio-3412, ¶29. However, the majority in
Alleyne was held:
In holding that facts that increase mandatory minimum sentences
must be submitted to the jury, we take care to note what our holding does
not entail. Our ruling today does not mean that any fact that influences
judicial discretion must be found by a jury. We have long recognized that
Licking County, Case No. 2022 CA 00014 10
broad sentencing discretion, informed by judicial fact-finding, does not
violate the Sixth Amendment. See, e.g., Dillon v. United States, 560 U.S.
817, ––––,
130 S.Ct. 2683, 2692,
177 L.Ed.2d 271 (2010) (“[W]ithin
established limits [,] ... the exercise of [sentencing] discretion does not
contravene the Sixth Amendment even if it is informed by judge-found facts”
(emphasis deleted and internal quotation marks omitted)); Apprendi, 530
U.S. at 481,
120 S.Ct. 2348 (“[N]othing in this history suggests that it is
impermissible for judges to exercise discretion—taking into consideration
various factors relating both to offense and offender—in imposing a
judgment within the range prescribed by statute”).
Alleyne, 570 U.S. at 116. See also, State v. Salim, 5th Dist. Guernsey
No. 13 CA 28, 2014-Ohio-357, ¶19.
{¶37} Under the Reagan Tokes Act the judge imposes both a minimum and a
maximum sentence. No judicial fact finding is required. In Ohio, “trial courts have full
discretion to impose a prison sentence within the statutory range and are no longer
required to make findings or give their reasons for imposing maximum, consecutive, or
more than the minimum sentences.” State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912,
896 N.E.2d 124. The Reagan Tokes Act does not permit the Department of Rehabilitation
and Correction (“DRC”) to extend a sentence beyond the maximum sentence imposed by
the trial court. Burris at ¶86. “Further, the facts which postpone an inmate’s release date
are facts found as a result of prison disciplinary proceedings, not the underlying crime.”
Id.
Licking County, Case No. 2022 CA 00014 11
Violation of Separate Powers
{¶38} “The Ohio Supreme Court has made it clear that when the power to sanction
is delegated to the executive branch, a separation-of-powers problem is avoided if the
sanction is originally imposed by a court and included in its sentence.” Burris at ¶78, citing
Hernandez v. Kelly, 108 Ohio St.3d 395,
2006-Ohio-126,
844 N.E.2d 301, ¶18-20 citing
State v. Jordan,
104 Ohio St.3d 21,
2004-Ohio-6085,
817 N.E.2d 864, ¶19. This is the
scheme established by the Reagan Tokes Law. State v. Ferguson, 2nd Dist. Montgomery
No. 28644,
2020-Ohio-4153, ¶23. The statute does not permit DRC to act outside of the
maximum prison term imposed by the court.
Id. Accordingly, the Reagan Tokes Act does
not violate the separation of powers doctrine.
Violation of Due Process
{¶39} Procedural requirements are minimal in the context of parole. Burris at ¶59.
“[P]rison disciplinary proceedings are not part of a criminal prosecution, and the full
panoply of rights due a defendant in such proceedings does not apply. Wolff v. McDonnell,
418 U.S. 539, 556,
94 S.Ct. 2963,
41 L.Ed.2d 935 (1974) (citations omitted). Courts have
found the following procedures should be accorded to prisoners in a disciplinary
proceeding:
1). a prisoner is entitled to a review unaffected by “arbitrary” decision
making. Wolff, 418 U.S. at 557-558,
94 S.Ct. 2963; (See,
Ohio Admin. Code
5120-9-08). 2). Advance written notice of the claimed violation. Wolff,
418
U.S. at 563,
94 S.Ct. 2963. (See, Ohio Adm. Code 5120:1-8-12). 3). A
written statement of the fact finders as to the evidence relied upon and the
reasons for the disciplinary action taken. Wolff, 418 U.S. at 563, 94 S.Ct.
Licking County, Case No. 2022 CA 00014 12
2963. (See, Ohio Adm. Code 5120-9-08(M); Ohio Adm. Code 5120: 1-
11(G)(1)). 4). Prison official must have necessary discretion to keep the
hearing within reasonable limits and to refuse to call witnesses that may
create a risk of reprisal or undermine authority, as well as to limit access to
other inmates to collect statements or to compile other documentary
evidence. Wolff, 418 U.S. at 566,
94 S.Ct. 2963 (See, Ohio Adm. Code
5120-0-08(E) (3); Ohio Adm. Code 5120-9-08(F)). 5). “Where an illiterate
inmate will be able to collect and present the evidence necessary for an
adequate comprehension of the case, he should be free to seek the aid of
a fellow inmate, or if that is forbidden, to have adequate substitute aid in the
form of help from the staff or from a sufficiently competent inmate
designated by the staff.” Wolff, 418 U.S. at 570,
94 S.Ct. 2963. (See, Ohio
Adm. Code 5120-9-07(H)(1)).
Burris at ¶55
{¶40} In the case sub judice, the DRC must conduct a hearing to rebut the
presumptive release date. Id. at ¶66. According to R.C. §2967.271(C) the DRC must
determine the applicability of the following factors:
(1) Regardless of the security level in which the offender is
classified at the time of the hearing, both of the following apply:
(a) During the offender’s incarceration, the offender committed
institutional rule infractions that involved compromising the security of a
state correctional institution, compromising the safety of the staff of a state
correctional institution or its inmates, or physical harm or the threat of
Licking County, Case No. 2022 CA 00014 13
physical harm to the staff of a state correctional institution or its inmates, or
committed a violation of law that was not prosecuted, and the infractions or
violations demonstrate that the offender has not been rehabilitated.
(b) The offender’s behavior while incarcerated, including, but not
limited to the infractions and violations specified in division (C)(1)(a) of this
section, demonstrate that the offender continues to pose a threat to society.
(2) Regardless of the security level in which the offender is
classified at the time of the hearing, the offender has been placed by the
department in extended restrictive housing at any time within the year
preceding the date of the hearing.
(3) At the time of the hearing, the offender is classified by the
department as a security level three, four, or five, or at a higher security
level.
{¶41} The Reagan Tokes Act requires DRC to provide notice of the hearing. R.C.
§2967.271(E). The Ohio Administrative code sets forth inmate rules of conduct,
disciplinary procedures for violations of the rules, under what circumstances an inmate is
transferred to restrictive housing, and procedure for release consideration hearings. Ohio
Adm. Code 5120-9-06; Ohio Adm. Code 5120-9-08; Ohio Adm. Code 5120-9-10; Ohio
Adm. Code 5120: 1-1-11. Therefore, the DRC gives the inmate notice in advance of
behavior which may contribute or result to extending their sentence.
{¶42} The Reagan Tokes Act provides the inmate an opportunity to be heard. The
DRC “shall provide notices of hearings to be conducted under division (C) or (D) of this
section in the same manner, and to the same persons, as specified in section 2967.12
Licking County, Case No. 2022 CA 00014 14
and Chapter 2930 of the Revised Code with respect to hearings to be conducted
regarding the possible release on parole of an inmate.” R.C. §2967.271(E).
{¶43} Therefore, we find the Reagan Tokes Act does not violate Appellant’s right
to due process.
{¶44} Appellant’s second Assignment of Error is overruled.
{¶45} For the foregoing reasons, the judgment of the Court of Common Pleas of
Licking County, Ohio, is hereby, affirmed.
By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.
JWW/br 0109
Licking County, Case No. 2022 CA 00014 15
Hoffman, J., concurring in part, and dissenting in part
{¶46} I concur in the majority’s analysis and disposition of Appellant’s second
assignment of error related to the Reagan Tokes law.
{¶47} I respectfully dissent from the majority’s decision to overrule Appellant’s first
assignment of error challenging the trial court’s decision to overrule his motion to
suppress. My reasons follow.
{¶48} There was no testimony offered regarding Appellant’s motion to suppress.
The matter was decided upon the four-corners of the affidavit submitted in support of the
request for the search warrant and the briefs submitted in support and opposition to the
motion.
{¶49} The affidavit of Detective Green begins by noting in July 2020, his task force
received information from a confidential source Appellant was involved in the distribution
of large quantities of narcotics, was transporting the drugs in a black 2003 Infinity, sedan
and storing them INSIDE HIS APARTMENT. (Emphasis added). Noteworthy, there was
no information establishing the reliability of the confidential source and the information
was more than six months prior to Detective Green’s affidavit arguably rendering the
information stale.
{¶50} The next source of information was from an anonymous caller claiming to
be a relative of Appellant and asserting Appellant was selling drugs again. This call was
around December 1, 2020, almost 2 months before Detective Green’s affidavit.
{¶51} A
dditional information was received from another, confidential source about two weeks
before Detective Green’s affidavit. The source revealed Appellant was doing “big things”
in an Infinity SUV. It was independently discovered Appellant was the registered owner
Licking County, Case No. 2022 CA 00014 16
of a 2010 silver Infinity SUV. Noticeably absent again was any information to establish
this confidential source’s reliability. Appellant was not driving that vehicle on the later date
when he was observed being present at the storage units.
{¶52} The affidavit also averred Appellant had been convicted of felony drug
trafficking charges in Licking County.
{¶53} Detective Green further averred the drug task force surveilled Appellant on
January 22, 2021, and observed him enter his black 2003 Infinity (the sedan, not the silver
Infinity SUV) and park it at a storage unit. The affidavit stated the door to unit D-20 was
open and approximately six minutes later Appellant was seen driving out of the storage
unit parking lot. The affidavit did not specifically aver Appellant was seen by law
enforcement entering or exiting unit D-20, but did aver Detective Vogelmeier contacted
management (of the storage unit) and advised him a black male driving a black car went
inside unit D-20.
{¶54} Following the traffic stop of Appellant, Detective Green then observed
Appellant possessed a small master key and the lock on storage unit D-20 was a master
padlock. (Emphasis added). Whether the “master key” and the “master padlock” are
generic locks or of a specific manufacturer is unknown. Of significance is the fact the
affidavit did not aver the key fit the padlock. The affidavit averred Appellant denied going
to the storage unit.
{¶55} Of critical significance is the averment in Detective Green’s affidavit
regarding his K-9’s performance of a free air sniff on all the doors of the same side of the
building as unit D-20, which resulted in a positive alert for the odor of narcotics. The
affidavit does not describe how many storage units were on the same side as D-20 or
Licking County, Case No. 2022 CA 00014 17
identify specifically at which of the door(s) on that side of the building the K-9 alerted or
otherwise provide the nexus between the positive alert and the specific unit D-20.1
{¶56} Because of the failure to establish the reliability of the confidential sources
and the anonymous “relative”, and noting the drugs Appellant was allegedly transporting
were found in the storage unit, not his apartment – such information ought not be
considered in determining whether probable cause existed for the issuance of the search
warrant. It is a given Appellant lied about being at the storage units despite not being
seen by the surveillance officers to have actually entered or exited unit D-20.
{¶57} Most troubling is the lack of specific information tying the K-9 positive alert
directly to unit D-20. Absent such direct nexus and discounting the information provided
by the confidential and anonymous source, I do not believe probable cause existed for
the issuance of the search warrant.2
1 The trial court’s summary of the affidavit in its decision denying Appellant’s motion to suppress stated the
drug dog altered to Unit D-20.
2 Appellee has not argued the good faith exception established in United States v. Leon, 468 U.S. 897,
104 S. Ct. 3405,
82 L.Ed. 2d 677 (1990), is applicable in this case and, as such, I will not, sua sponte,
consider it.
Licking County, Case No. 2022 CA 00014 18
