[Cite as State v. Carter, 2011-Ohio-6700.]
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2011 CA 11
v. : T.C. NO. 2010CR358
DORIAN CARTER : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 23rd day of December , 2011.
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ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecutor, 61 Greene Street,
Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
ANTHONY COMUNALE, Atty. Reg. No. 0062449, 130 West Second Street, Suite 2050,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Dorian Carter appeals from a judgment of the Greene County Court of
Common Pleas, which, after overruling his motions to suppress evidence, found him
guilty on his no contest pleas to three counts of complicity to aggravated trafficking in
drugs. The court sentenced him to a mandatory term of four years on each count, to
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be served concurrently.
{¶ 2} Carter’s indictment followed a series of controlled purchases of ecstasy by
a confidential informant in conjunction with the Greene County A.C.E. Task Force.
These purchases, which occurred between August and December 2009, led the police
to seek a search warrant for Carter’s apartment, 1777 Arlin Place, Apartment H, in
Fairborn. The affidavit in support of the search warrant was prepared by Detective
Richard Miller of the Yellow Springs Police Department; it detailed three controlled
purchases of ecstasy made by the confidential informant and the evidence linking the
ecstasy to apartment H. According to Detective Miller, no information was presented to
the judge beyond that contained in the affidavit.
{¶ 3} On December 10, 2009, a judge issued a search warrant for 1777 Arlin
Place, Apartment H. The search warrant was executed on December 11, 2009. Carter
made statements to the police at the time of the search, and drugs and weapons were
found in his apartment.
{¶ 4} In July 2010, Carter was indicted on two counts of conspiracy to commit
aggravated trafficking in drugs (ecstasy), three counts of complicity to aggravated
trafficking in drugs (ecstasy), one count of possession of marijuana, and one count of
trafficking in marijuana, with a firearm specification. The indictment also contained
forfeiture specifications with respect to numerous guns, cash, and a flat-screen
television. Carter pled not guilty and filed motions to suppress his statements to the
police and the evidence found as a result of the search of his apartment. In October
2010, the trial court held a hearing on the motions to suppress. The trial court
overruled the motions to suppress in their entirety.
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{¶ 5} After the trial court overruled his motions to suppress, Carter changed his
plea to no contest on three counts of complicity to aggravated trafficking in drugs, all
felonies of the third degree with mandatory imprisonment; the other counts, including
the firearm specification, were dismissed. The trial court found Carter guilty and
sentenced him to a definite term of four years on each count, to be served concurrently,
as discussed above. Carter also stipulated to the forfeiture of all the items listed in the
indictment, and the trial court ordered such forfeiture.
{¶ 6} Carter raises two assignments of error on appeal, which relate to the
denial of his motions to suppress evidence.
{¶ 7} The first assignment of error states:
{¶ 8} “TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION TO
SUPPRESS EVIDENCE OBTAINED AS A RESULT OF THE SEARCH WARRANT.”
{¶ 9} Carter contends that the affidavit in support of the search warrant
contained insufficient evidence to justify the issuance of the warrant and that,
accordingly, the evidence obtained in the search should have been suppressed.
{¶ 10} “In determining the sufficiency of probable cause in an affidavit submitted
in support of a search warrant, ‘[t]he task of the issuing magistrate 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 “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.’” State v. George (1989), 45 Ohio St.3d 325,
paragraph one of the syllabus, following Illinois v. Gates (1983), 462 U.S. 213,
238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527. “[N]either a trial court nor an appellate court
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should substitute its judgment for that of the magistrate by conducting a de novo
determination as to whether the affidavit contains sufficient probable cause upon which
that court would issue the search warrant. Rather, the duty of a reviewing court is
simply to ensure that the magistrate had a substantial basis for concluding that probable
cause existed. In conducting any after-the-fact scrutiny of an affidavit submitted in
support of a search warrant, trial 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.” Id., at paragraph two of the
syllabus. 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. Freeman, Highland App. No. 06CA3,
2006-Ohio-5020.
{¶ 11} A search warrant enjoys a presumption of validity; when a defendant’s
motion to suppress attacks the validity of a search conducted under a warrant, the
defendant bears the burden of proof. State v. Barnes (Mar. 16, 2000), Franklin App.
No. 99AP-572.
{¶ 12} Detective Miller’s affidavit in support of the search warrant stated:
{¶ 13} “2. On or about August 25, 2009, the Affiant was contacted by a
confidential source, hereafter referred to as CS#1, who told the Affiant that he/she knew
a subject by the name of David Rose who lived at Arlin Apartments and sold ecstasy.
CS#1 told the Affiant that Rose used telephone number 937-626-2535 to facilitate his
drug transactions.
{¶ 14} “3. On or about August 25, 2009, the Affiant directed CS#1 to place a
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controlled telephone call to Rose to order a quantity of ecstasy. The Affiant made a
recording of the telephone call. CS#1 ordered a quantity of ecstasy from Rose and was
quoted a price for the ecstasy. On the phone, Rose identified his supplier as a subject
named ‘D’, telling CS#1 that D was his neighbor at the Arlin Apartments. Rose told CS#1
that he was going to call D and get the ecstasy to sell to CS#1. Rose called CS#1
moments late[r] and stated that he (Rose) had gotten the ecstasy from D and was ready to
meet. *** Detectives Kordish and Prall, and other law enforcement officials, conducted
audio and video surveillance of CS#1 at the deal location. Shortly after CS#1 arrival at the
deal location, Rose arrived as a passenger of a VW Jetta bearing Ohio license number
EUL8813. Rose got into the passenger seat of CS#1 vehicle and exchanged the buy
money for a quantity of purported ecstacy. After the exchange, Rose exited CS#1 and
returned to the vehicle he arrived in. Surveillance detectives followed Rose and the vehicle
he arrived in back to the Arlin Apartments. CS#1 left the deal location and returned to meet
with the Affiant and Detective Julian. ***
{¶ 15} “4. The Affiant conducted a check through the Ohio Law Enforcement
Gateway (OHLEG) Database on the name David Rose. OHLEG showed that a subject by
the name of David Rose listed his address as 1777 Arlin Pl Apt. A, Fairborn, Ohio, 45324.
The Affiant knows that Apartment A is in close proximity to Apartment H confirming what
Rose had told CS#1 about D being his neighbor. The Affiant was able to positively identify
Rose via his BMV photo as the person that met with CS#1 and sold CS#1 ecstasy.
{¶ 16} “5. On or about October 14, 2009, the Affiant directed CS#1 to place a
controlled telephone call to Rose to order another quantity of ecstasy. *** CS#1
ordered a quantity of ecstasy from Rose and was quoted a price for the ecstasy. On
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the phone Rose tells CS#1 that he was going to walk over to D’s apartment and check
to see if he had any ecstasy. Rose called back moments later and told CS#1 that D
fronted him a quantity of ecstasy and that he was ready to meet with CS#1 to complete
the deal. *** The Affiant and other law enforcement officials monitored CS#1 as he
traveled the area of the 1700 Block of Arlin Pl, to meet Rose. Detectives Hern and
Etchison, ACE Task Force, conducted audio and video surveillance of CS#1 at the deal
location. Shortly after CS#1 arrival at the deal location, Rose approached CS#1
vehicle on foot and met CS#1 at the driver window. CS#1 exchanged the buy money
for a quantity of purported ecstasy. After the exchange Rose left the deal location on
foot. After the deal, Rose told CS#1 that he needed to go pay D back for the ecstasy
CS#1 had purchased from him. CS#1 observed Rose go into 1777 Arlin Pl., Apt H, to
repay D. ***
{¶ 17} “6. On or about December 9, 2009, the Affiant directed CS#1 to place a
controlled telephone call to Rose to order another quantity of ecstasy. *** CS#1
ordered a quantity of ecstasy. Rose tells CS#1 that he would call D and call him back.
Rose called moments later saying th[at] D had the ecstasy but stated he would need a
ride to D’s apartment to pick up the ecstasy. Detective Hern and the Affiant met with
CS#1 to complete the deal with Rose and D. *** Detective Tidd conducted audio and
video surveillance in the parking lot of 1777 Arlin Pl and observed CS#1 vehicle park in
the lot. Detective Tidd observed Rose exit the passenger side of the vehicle and enter
1777 Arlin Pl Apt. H, as CS#1 waited in the vehicle. Within a couple of minutes Rose
exited apartment H and got back into CS#1 vehicle. Inside, Rose gave CS#1 a
quantity of purported ecstasy. Rose also showed CS#1 additional purported ecstasy
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stating he bought additional ecstasy to sell to another person. Rose claimed that D
had hundreds more ecstasy for sale. The Affiant and other Law Enforcement officials
followed CS#1 and Rose back [to] Rose’s address. After dropping off Rose the Affiant
and Detective Hern met with CS#1 and retrieved the purchased ecstasy. ***
{¶ 18} “7. On December 10, 2009, the Affiant obtained a Grand Jury subpoena
and served it upon Dayton Power and Light for subscriber of electricity for 1777 Arlin Pl
Apt H, Fairborn, Ohio 45324. Information returned by Dayton Power and Light showed
that Dorian Carter, SSN [omitted], DOB [omitted], has the electricity in his name for
1777 Arlin Pl Apt H, Fairborn, Ohio 45324.”
{¶ 19} The affidavit further stated that the detectives had provided the money
used to complete the transactions and had thoroughly searched the confidential
informant (and, when necessary, his car) both before and after each transaction; they
also monitored his travel to and from the meeting place and his telephone calls with
Rose. The substance purchased in the first two transactions was sent to the Miami
Valley Regional Crime Lab and was confirmed to be ecstasy; the substance purchased
in the third transaction “received a positive indicator” for ecstasy in a field test. Finally,
the affidavit listed numerous “common practices” of drug dealers, based on Detective
Miller’s experience, many of which were consistent with the actions of “D” and Rose in
this case.
{¶ 20} Although Carter correctly notes in his brief that much of the affidavit in
support of the warrant to search his apartment focuses on the behavior of Carter’s
neighbor, Rose, who was the middle-man in the drug sales, information about Carter’s
role is also included. For example, in a conversation with the confidential informant,
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Rose identified “D” as his supplier and as a neighbor. Rose also recounted to the
confidential informant having “walked over” to his supplier, being “fronted” a quantity of
ecstasy, and seeing a very large quantity of ecstasy in “D”’s possession. It is apparent
from the time frames described in the affidavit that Rose was able to acquire ecstasy
very quickly when he was at his apartment, and that he returned to his apartment
building to acquire ecstasy when he was elsewhere. Additionally, according to the
affidavit, on one occasion the confidential informant saw Rose return directly from one
of their transactions on the street to apartment H, Carter’s apartment. The affidavit
also mentions audio and video surveillance by one of the detectives, suggesting that the
detective saw Rose enter apartment H while the confidential informant waited outside to
complete one of their transactions.
{¶ 21} The magistrate issuing the search warrant was not required to conclude
that apartment H was the only possible source of the ecstasy provided through the
transactions with Rose. The magistrate need only have concluded that there was a fair
probability that contraband or evidence of a crime would be found in apartment H. In
our view, the affidavit provided a reasonable basis to conclude that apartment H likely
contained evidence related to the drug transactions that had been set up and monitored
by the A.C.E Task Force. The trial court did not err in refusing to suppress the
evidence obtained in the search of apartment H.
{¶ 22} The first assignment of error is overruled.
{¶ 23} The second assignment of error states:
{¶ 24} “THE TRIAL COURT ERRED IN NOT SUPPRESSING APPELLANT’S
STATEMENTS.”
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{¶ 25} Carter argues that his statements to the police should have been
suppressed because the State failed to meet its burden to prove that Carter was
informed of his Miranda rights before he was interviewed.
{¶ 26} The State presented a videotape in which Carter was informed of and
acknowledged his rights while the police were at his apartment, but it included no
time-stamp. (The videotape did not include Carter’s statements to the police.) A
sheriff’s deputy and a detective testified at the suppression hearing that the videotape
was made within five to ten minutes of when they entered Carter’s apartment to execute
the search warrant and before he was questioned. Carter testified that the video was
recorded one to two hours after the police arrived, when they were getting ready to
leave the apartment. He also testified that he had asked for an attorney, but one of the
officers “did a kind of hand motion, gesturing me off.”
{¶ 27} The decision whether, and to what extent, to credit the testimony of
particular witnesses is within the peculiar competence of the factfinder, who has seen
and heard the witnesses. State v. Lawson (Aug. 22, 1997), Montgomery App. No.
16288. “This court will not substitute its judgment for that of the trier of facts on the
issue of witness credibility unless it is patently apparent that the factfinder lost its way.”
State v. Bradley (Oct. 24, 1997), Champaign App. No. 97 CA 03.
{¶ 28} The law enforcement officers and Carter presented conflicting accounts of
the circumstances under which he was advised of his rights, particularly the point in
time at which he was provided that information. The trial court found that Carter’s
claim that he was not informed of his rights until after his statements were made was
“plausible” but not “credible.” The trial court did not clearly lose its way in crediting the
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testimony of the law enforcement officers and, thus, did not err in refusing to suppress
Carter’s statements to them.
{¶ 29} The second assignment of error is overruled.
{¶ 30} The judgment of the trial court will be affirmed.
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GRADY, P.J. and HALL, J., concur.
Copies mailed to:
Elizabeth A. Ellis
Anthony Comunale
Hon. Stephen A. Wolaver