State v. Gonzales

[Cite as State v. Gonzales, 2014-Ohio-557.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 13-13-31

v.

ERNESTO GONZALES, OPINION

DEFENDANT-APPELLANT.

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 13-13-32

v.

ERNESTO GONZALES, OPINION

DEFENDANT-APPELLANT.

Appeals from Fostoria Municipal Court
Trial Court Nos. CRB 1200385 A and CRB 1200385 B

Judgment Affirmed in Case No. 13-13-31
Judgment Affirmed in Part and Vacated in Part in Case No. 13-13-32

Date of Decision: February 18, 2014

APPEARANCES:

Matthew B. Bryant for Appellant

Timothy J. Hoover for Appellee
Case Nos. 13-13-31 and 13-13-32

SHAW, J.

{¶1} Defendant-appellant Ernesto Gonzales (“Gonzales”) appeals the July

2, 2013, judgments of the Fostoria Municipal Court sentencing Gonzales to, inter

alia, a permanent weapons disability after Gonzales was found guilty of

Possession of Marijuana in violation of R.C. 2925.11(C)(3), a minor

misdemeanor, and Possession of Criminal Tools, in violation of R.C. 2923.24(A),

a first degree misdemeanor.1

{¶2} The facts relevant to this appeal are as follows. On April 17, 2012, a

“no knock” search warrant was executed at 221 East North Street in Fostoria,

Ohio, the residence of Gonzales, his girlfriend, and Gonzales’s mother. As part of

the search, police recovered 99.9 grams of marijuana, and digital scales.

{¶3} On September 21, 2012, Gonzales was charged with Possession of

Marijuana in violation of R.C. 2925.11, a minor misdemeanor, and Possession of

Criminal Tools in violation of R.C. 2923.24, a first degree misdemeanor.

Gonzales pled not guilty to the charges.

{¶4} On November 26, 2012, Gonzales filed a “Motion to Suppress

Evidence,” arguing that his Fourth Amendment rights were violated in the search

1
Separate judgment entries were entered for each conviction in this case. These entries were each
appealed, and then consolidated for the purposes of appeal. The conviction regarding Possession of
Criminal Tools, trial court case number 1200385A, corresponds to appellate case number 13-13-31. The
conviction regarding Possession of Marijuana, trial court case number 1200385B, corresponds to appellate
case number 13-13-32. We note, however, that there was in fact only one case in the trial court, with two
separate counts or offenses, distinguished with the designation “A” and “B”.

-2-
Case Nos. 13-13-31 and 13-13-32

and that evidence obtained in the search should be suppressed as “fruit of the

poisonous tree.” (Doc. 10). On January 15, 2013, the State filed a response to

Gonzales’s motion. (Doc. 22).

{¶5} On January 15, 2013, a hearing was held on the motion to suppress.2

At the hearing, Gonzales contended that there was “not a scintilla of probable

cause in [the] search warrant[.]” To counter this, the State called Detective Matt

Armstrong, who at the time of this investigation, and at the time the search warrant

was executed, worked for the Fostoria Police Department.3

{¶6} With regard to the probable cause in the search warrant, Detective

Armstrong testified that an investigation involving Gonzales began in 2011, based

on information received from anonymous sources and reliable confidential

informants.4 (Tr. at 8). Detective Armstrong elaborated further, stating that the

“entire time” he was with the Seneca County Drug Task Force, he was “receiving

information about Ernesto Gonzales and his brother JoAngelo Gonzales * * * and

their involvement in the drug industry.” (Tr. at 9). Detective Armstrong testified

that he was able to corroborate “most” of that information. (Id.)

2
We would note that Judge Repp presided over this case, sitting by assignment.
3
On cross-examination it was revealed that at the time of this hearing Detective Armstrong worked for the
City of Miamisburg. (Tr. at 19).
4
Reliable confidential informants were testified to be those that had “worked with the Task Force and
participated in two or more successful drug transactions.” (Tr. at 8-9).

-3-
Case Nos. 13-13-31 and 13-13-32

{¶7} Detective Armstrong testified that he received a tip from a reliable

confidential informant on April 11, 2012, indicating large quantities of drugs had

been stored in the East North Street residence. (Tr. at 16). Detective Armstrong

testified that once he had “obtained all this information” he did a “trash pull”

where officers “conducted surveillance and took the trash from the curb side of

221 East North Street and went through it.” (Tr. at 10). Detective Armstrong

testified that while “going through the trash [they] located several marijuana stems

and buds.” (Tr. at 10). In addition, Detective Armstrong testified that they

“located mail for the residence of 221 East North Street” in the trash, indicating

that the trash with the marijuana stems and buds came from that address. (Id.)

Detective Armstrong testified that records indicated Gonzales, his girlfriend

Angelica and Ernesto’s mother all lived at 221 East North Street. (Tr. at 12).

{¶8} Detective Armstrong testified that on the same day they conducted the

“trash pull,” a lengthy history “was placed into an affidavit for a search warrant”

for 221 East North Street. (Tr. at 9, 13). Detective Armstrong testified that they

put in the warrant request that they wanted to do a “no knock” entry into the

residence “[b]ecause of * * * the risk of * * * violence.” (Tr. at 14). He stated

that “[Gonzales and his brother] had a history of being involved with guns[.]” (Tr.

at 14). Detective Armstrong also testified that in his experience “drugs and guns

go hand-in-hand,” that Gonzales had a concealed carry permit, that Gonzales was

-4-
Case Nos. 13-13-31 and 13-13-32

involved in the distribution of guns as well as drugs, and that Gonzales had put

“video performances on the Internet” wherein Gonzales had multiple firearms. (Tr.

at 23, 28, 36).

{¶9} The actual search warrant was not entered into evidence at the

suppression hearing. However, defense counsel did acknowledge that he had

reviewed the warrant, and he cross-examined Detective Armstrong regarding the

contents of the warrant in an attempt to show that probable cause did not exist to

support the issuance of the warrant. (Tr. at 19-34).

{¶10} On January 22, 2013, the trial court issued a ruling denying

Gonzales’s motion to suppress. (Doc. 24). The trial court found that Detective

Armstrong had “done a trash pull * * * gathering evidence of drugs and actual

drugs with evidence linking that address at 221 East North Street.” (Jan. 22, 2013,

Tr. at 2). In addition, the court cited the fact that a confidential informant had

given information with regard to activity at the residence, and there being “a large

store of marijuana” present. (Id.) The court found that under the totality of the

circumstances, Gonzales’s motion should be denied. (Id.)

{¶11} On April 12, 2013, Gonzales filed a second motion to suppress,

arguing that the search warrant still did not contain sufficient probable cause.

(Doc. 35). A hearing on the motion was held on April 18, 2013. At the hearing,

Gonzales’s counsel contended that he did not have the affidavit used in obtaining

-5-
Case Nos. 13-13-31 and 13-13-32

the search warrant available to him in the first suppression hearing, and that he

intended to more fully question Detective Armstrong about it. (April 18, Tr. at 4).

The State contended that the arguments were the same as in the first suppression

motion. The court allowed the parties to submit written arguments, stating that it

would issue a written opinion on the matter. (Id. at 7-8).

{¶12} Subsequently, on April 18, 2013, the State filed a response to

Gonzales’s second motion to suppress. On April 24, 2013, Gonzales filed a reply

to the State’s response, and on April 29, 2013, the State filed a response contra to

Gonzales’s reply. (Docs. 39-41).

{¶13} On May 2, 2013, the trial court issued a written opinion denying

Gonzales’s second motion to suppress. In the opinion, the trial court found that

“[w]hile the defendant has highlighted some of the inaccuracies in the

observations of the informant, the Court * * * does not find that information to be

unfounded, without any basis or so remote in time as to be stale. While a dispute

over exactly how many marijuana plants that existed in the trailer [sic] may be an

important dispute for trial, the inaccuracy does not negate the existence of

probable cause for illegal conduct.” (Doc. 42). The court did go on to state that

although more could have been done to verify information in the affidavit, there

was sufficient information in the affidavit to support the warrant. (Id.)

-6-
Case Nos. 13-13-31 and 13-13-32

{¶14} On July 2, 2013, after his suppression motions were denied,

Gonzales withdrew his not guilty pleas and entered no contest pleas to the charges,

consenting to a finding of guilt. The trial court accepted Gonzales’s pleas, and

found him guilty as charged.

{¶15} The trial court proceeded immediately with sentencing. Ultimately

Gonzales was sentenced to pay a $150 fine on the Possession of Marijuana

conviction, and he was told he was under a “permanent weapons disability.” On

the Possession of Criminal Tools conviction, Gonzales was sentenced to 30 days

in jail, with all 30 days suspended. Judgment entries memorializing and reflecting

these sentences were filed that same day, on July 2, 2013. (Docs. 48, 49).

{¶16} It is from these judgments that Gonzales appeals, asserting the

following assignments of error for our review.

ASSIGNMENT OF ERROR 1
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
BY DENYING APPELLANT’S FIRST & SECOND MOTIONS
TO SUPPRESS IN VIOLATION OF APPELLANT’S FOURTH
AMENDMENT RIGHTS[.]

ASSIGNMENT OF ERROR 2
THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT BY FAILING TO RULE ON ALL OF THE
ISSUES RAISED BY APPELLANT IN HIS MOTION TO
SUPPRESS—NAMELY THAT THE SEARCH WARRANT
WAS OVERLY BROAD AND CONSTITUTED A GENERAL
WARRANT IN VIOLATION OF THE FOURTH
AMENDMENT[.]

-7-
Case Nos. 13-13-31 and 13-13-32

ASSIGNMENT OF ERROR 3
THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT BY FAILING TO INVALIDATE THE WAIVER
OF THE NO KNOCK REQUIREMENT AND SUPPRESS ALL
EVIDENCE OBTAINED[.]

ASSIGNMENT OF ERROR 4
THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT IN THE SENTENCING OF APPELLANT BY
PLACING APPELLANT ON A PERMANENT WEAPONS
DISABILITY WITH NO STATUTORY AUTHORITY.

First Assignment of Error

{¶17} In Gonzales’s first assignment of error, he argues that the trial court

erred in denying his suppression motions. Specifically, Gonzales contends that

under the totality of the circumstances, Detective Armstrong’s affidavit failed to

establish a substantial basis for the issuing judge’s conclusion that there was a fair

probability that illegal drugs would be found in Gonzales’s residence. In addition,

Gonzales contends that the affidavit failed to establish that there was any “current”

illegal activity at the subject residence, and that the affidavit relied on “guilt by

association,” thereby “misleading” and “confusing” the issuing judge.

{¶18} The Fourth Amendment to the United States Constitution requires

that warrants issue only “upon probable cause.” Probable cause “means less than

evidence which would justify condemnation,” so that only the “probability, and

not a prima facie showing of criminal activity is the standard of probable cause.”

State v. George, 45 Ohio St.3d 325, 329 (1989) (internal quotation marks omitted).

-8-
Case Nos. 13-13-31 and 13-13-32

To search for evidence of a crime there must “be a nexus * * * between the item to

be seized and criminal behavior” as well as “cause to believe that the evidence

sought will aid in a particular apprehension or conviction.” Warden, MD.

Penitentiary v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 1650 (1967).

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

submitted to support 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 “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.’”

George at paragraph one of the syllabus, quoting Illinois v. Gates, 462 U.S. 213,

238-39, 103 S.Ct. 2317, 2332 (1983). A reviewing court should not conduct a de

novo review of a magistrate's determination of probable cause. Rather, “the duty

of a reviewing court is simply to ensure that the magistrate had a substantial basis

for concluding that probable cause existed,” according “great deference to the

magistrate's determination of probable cause” and resolving “doubtful or marginal

cases in this area * * * in favor of upholding the warrant.” Id. at paragraph two of

the syllabus.

{¶20} In sum, on appeal, when we are reviewing the issuing judge's

determination of probable cause, the review is limited to ensuring that the judge

-9-
Case Nos. 13-13-31 and 13-13-32

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

Garza, 3d Dist. Henry No. 7-13-04, 2013-Ohio-5492, ¶ 19 citing George.

{¶21} The affidavit used in supporting the acquisition of the search warrant

in this case contained the following information.

2. During my employment with the Fostoria Police Department,
and as an Agent with the Seneca County Drug Task Force –
METRICH Enforcement Unit, I, along with other Agents * * *
have become familiar with multiple subjects identified as * * *
Ernesto R. Gonzales * * * who are actively participating in a
conspiracy involving the distribution of marijuana, cocaine, and
firearms.

***

18. In October of 2011, this officer received information from a
confidential source * * * that JoAngelo Gonzalez is involved in
the distribution of illicit drugs and that he is affiliated with
numerous guns. * * *

***

21. * * * The source of information further stated that JoAngelo
utilizes the stash houses to store his drugs and guns but that
he/she does not believe he keeps money at these houses.

***

32. During my employment * * * it has become known to me
through other officers * * * that Mona Hernandez is JoAngelo
Gonzales’ mother and that JoAngelo used to live with his mother
at 221 E. North St. * * *[.]

***

-10-
Case Nos. 13-13-31 and 13-13-32

34. On October 23rd, 2011, this affiant received information
from a confidential source who reported that * * * JoAngelo told
the source that he uses multiple residences that the police would
never suspect to store “stuff.”

35. On November 16th, 2011, while conducting surveillance this
affiant observed Antonio Brown driving a black GMC Yukon
and arrive at Ernesto Gonzales’ residence located at 221 E.
North St. * * *[.] After staying for a short period of time, this
affiant observed Mr. Brown exit the residence and begin driving
again. This affiant was aware and had confirmed that Mr.
Brown’s license was suspended and at that time request a road
patrol officer of the Fostoria Police Department stop the vehicle.
Mr. Brown was stopped and arrested for driving under
suspension. After arriving at the jail he was found to be in
possession of suspected marijuana and charged with conveyance
of contraband into a correctional facility.

36. During the stop officer’s [sic] observed a strong odor of
marijuana coming from the vehicle. This affiant then obtained a
search warrant for the vehicle which was executed later that
day. Upon executing the search warrant officers located
suspected marijuana in the vehicle.

***

47. Throughout this investigation I have found that JoAngelo
Gonzales along with Ernesto Gonzales and Antonio Brown not
only have a drug affiliation but are also all affiliated with Fam
Life Entertainment a music group/record label of which Jo
Angelo Gonzales is the CEO.

48. Throughout this investigation I have further observed
multiple music video’s produced by Fam Life Entertainment.
The music videos depict JoAngelo Gonzales, Ernesto Gonzales,
Antonio Brown and multiple other persons in possession of
multiple firearms.

***

-11-
Case Nos. 13-13-31 and 13-13-32

50. On April 11th, 2012 this Affiant received information from
confidential informant CI-10-022 regarding JoAngelo and
Ernesto Gonzales. CI-10-022 reported that JoAngelo and
Ernesto store large quantities of marijuana at their house on E.
North St. CI-10-022 further reported that he/she has recently
been told by a close family member of JoAngelo, that within the
past three months, he/she personally observed a closet full of
marijuana in the upstairs bedroom of the residence.

51. The * * * METRICH Enforcement Unit has been utilizing *
* * CI-10-022 for approximately 1.5 * * * years, during which
time, CI-10-022 has given law enforcement officers reliable
confidential information which has allowed * * * officers to
confiscate & seize a substantial amount of illicit drugs from
suspects operating in Seneca County Ohio. I have found that
through these investigations while utilizing confidential
informant, CI-10-022, that the information I have received * * *
has been reliable and accurate.

52. It has been common knowledge that Mona Hernandez is
JoAngelo and Ernesto Gonzales’ mother and that she resides at
221 E. North St * * * [.] Further, Ernesto Gonzales and his
girlfriend Angelica A. Hernandez * * * also reside at 221 E.
North St. * * * with Ernesto’s mother Mona.

53. According to OHLEG, Ernesto R. Gonzales’ listed address
on his * * * license is 221 E. North St.; Angelica A. Hernandez
listed her address * * * [as] 221 E. North St.; Mona Hernandez
listed address on her * * * license is 221 E. North St. * * *[.]

54. On April 17th, 2012 * * * METRICH * * * conducted a
covert curbside investigative technique at the residence located
at 221 E. North St., * * * Upon doing so this affiant confiscated,
suspected marijuana roaches and stems and documents of mail
addressed to Angelica Hernandez at the address of 221 E. North
St. * * *[.] The suspected marijuana was submitted to Det.
Joseph of the Seneca County, Sheriff’s Office for chemical
testing. This officer later learned that the suspected marijuana

-12-
Case Nos. 13-13-31 and 13-13-32

tested positive as Cannabis Sativa L commonly known as
marijuana.

55. Through my experience * * * I believe that the
corroborating drug information & drug intelligence that I have
received throughout this investigation from Confidential
informants, confidential sources of information, and/or Law
Enforcement officers as set forth in this affidavit, that it is
evident that JoAngelo Gonzales, Ernesto R. Gonzales, Angelica
A. Hernandez * * * are presently involved in the possession and
distribution of illicit drugs from the residences located at 221 E.
North St. * * * [.]

***

63. It is also requested that if the Search Warrant is granted by
the Court, the affiant of this Search Warrant would request for
a waiver of the Statutory Pre-condition for Non-consensual
entry, pursuant to ORC 2933.231, in relation to this Search
Warrant. I have good cause to believe that there is a risk of
serious physical harm to the Law Enforcement Officers or other
authorized individuals who will execute the warrant if they are
to comply with the statutory pre-condition for non-consensual
entry. I have found through my training & experience with
investigating drug related activities that persons involved in such
drug activity often carry or have ready at hand, loaded firearms
that are used for protection of their money and assets. The
person’s [sic] who I believe pose such serious physical harm is
Ernesto R. Gonzales, Angelica A. Hernandez and Mona
Hernandez * * *[.]

(Doc. 35, Ex. A).

{¶22} In addition to the cited portions of the affidavit, the affidavit

contained a significant amount of other information related to the investigation of

JoAngelo Gonzales and others, including information regarding another “stash

-13-
Case Nos. 13-13-31 and 13-13-32

house” that had been raided, yielding 40 pounds of marijuana, digital scales,

cocaine, ecstasy, prescription drugs, and US currency. (Id.)

{¶23} On appeal, Gonzales challenges whether the affidavit in support of

the search warrant was sufficient for the issuing judge to find that there was a

substantial basis probable cause existed. Gonzales also contends that the affidavit

failed to establish any “current” illegal activity at the residence in question.

Further, Gonzales argues that the affidavit relied on “guilt by association.”

{¶24} Despite Gonzales’s arguments, Detective Armstrong’s affidavit

contained several provisions specific to Gonzales, indicating drugs were at the

residence in question. First, Detective Armstrong’s affidavit expressed that

Gonzales was involved in the illegal sale of drugs along with JoAngelo. The

affidavit further stated that Antonio Brown had been found with marijuana after

leaving Gonzales’s residence, having been there only for a short time.

{¶25} In addition, a reliable confidential informant provided information

that Gonzales’s residence had been used to store a large quantity of marijuana.

Only six days after receiving this information, Detective Armstrong did a “covert

curbside investigation technique” or a “trash pull,” taking the trash from

Gonzales’s residence, finding marijuana. The same day the trash pull was done,

Detective Armstrong sought the search warrant.

-14-
Case Nos. 13-13-31 and 13-13-32

{¶26} Under the totality of the circumstances, we find that there was

sufficient evidence in the affidavit for the trial judge to find that there was a

substantial basis probable cause existed, and that it was timely, based on the trash

pull.

{¶27} Moreover, although Gonzales argues that the affidavit relied on

“guilt by association,” the inclusion of a substantial amount of background

information related to JoAngelo and the investigation that concerned him does not

negate the facts specific to Gonzales and his residence. This is particularly true, as

Detective Armstrong’s affidavit specifically stated that Gonzales was involved

with JoAngelo. Furthermore, there is no indication that the judge issuing the

warrant was confused about who the warrant was regarding, as Gonzales and his

residence are explicitly listed on the search warrant. Therefore, we cannot find

that the affidavit relied improperly on “guilt by association.”

{¶28} Accordingly, Gonzales’s first assignment of error is overruled.

Second Assignment of Error

{¶29} In Gonzales’s second assignment of error, he argues that the trial

court erred by failing to rule on all of the issues raised in his suppression motion.

Specifically, Gonzales argues that the trial court failed to rule on his argument that

the search warrant was overly broad and constituted a “general warrant” in

violation of the Fourth Amendment. In addition, Gonzales takes exception to the

-15-
Case Nos. 13-13-31 and 13-13-32

warrant naming three people to be searched as well as any/all other individuals

present at the residence.

{¶30} Pursuant to the Fourth Amendment and Section 14, Article I, Ohio

Constitution, only warrants “particularly describing the place to be searched and

the person or things to be seized” may issue. “The manifest purpose of this

particularity requirement was to prevent general searches. * * * [T]he requirement

ensures that the search will be carefully tailored to its justifications, and will not

take on the character of the wide-ranging exploratory searches the Framers

intended to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013,

(1987). By requiring a particular description of the items to be seized, the Fourth

Amendment “prevents the seizure of one thing under a warrant describing another.

As to what is to be taken, nothing is left to the discretion of the officer executing

the warrant.” Marron v. United States, 275 U.S. 192, 196 (1927).

{¶31} Particularization with respect to the things to be seized actually

encompasses two distinct, albeit related, concerns: “one is whether the warrant

supplies enough information to guide and control the agent’s judgment in selecting

what to take * * * and the other is whether the category as specified is too broad in

the sense that it includes items that should not be seized.” (Citations omitted.)

United States v. Upham (C.A.1, 1999), 168 F.3d 532, 535. “Thus, ‘an otherwise

unobjectionable description of the objects to be seized is defective if it is broader

-16-
Case Nos. 13-13-31 and 13-13-32

than can be justified by the probable cause upon which the warrant is based.’”

State v. McCrory, 6th Dist. Wood No. WD-09-074, 2011-Ohio-546, ¶ 23, quoting

2 LaFave, Search and Seizure (4 Ed.2004) 607, Section 4.6(a).

{¶32} In determining whether a search warrant satisfies the Fourth

Amendment's particularity requirement, reviewing courts employ a standard of

practical accuracy rather than technical precision. United States v. Otero (C.A.10,

2009), 563 F.3d 1127, 1132. “[A] search warrant is not to be assessed in a

hypertechnical manner [and need not satisfy the] ‘[t]echnical requirements of

elaborate specificity once exacted under common law pleadings.’” United States

v. Srivastava (C.A.4, 2008), 540 F.3d 277, 289, quoting United States v.

Ventresca, 380 U.S. 102, 108 (1965). A search warrant will be held sufficiently

particular when it enables a searcher to reasonably ascertain and identify the things

authorized to be seized. United States v. Riccardi (C.A.10, 2005), 405 F.3d 852,

862. “The common theme of all descriptions of the particularity standard is that

the warrant must allow the executing officer to distinguish between items that may

and may not be seized.” United States v. Leary (C.A.10, 1988), 846 F.2d 592,

600, fn. 12.

{¶33} In this case, the Search Warrant stated as follows:

Where there has been filed with me an Affidavit, of which
the following is a copy attached and made a part hereof just as
fully as if rewritten hereon.

-17-
Case Nos. 13-13-31 and 13-13-32

These are, therefore, to command you in the name of the
State of Ohio, with the necessary and proper assistance, to enter
within three days, (in the night time), 221 E. North St. City of
Fostoria * * * a two story, single unit dwelling, white in color,
with a covered red brick porch on the north side of the residence
& any curtilage thereof. * * * That being the residence of
Ernesto R. Gonzales, Angelica A. Hernandez, and Mona
Hernandez. Also, any persons, vehicles on the property and
vehicles registered to persons or under the control of persons
found inside the residence at the time the warrant is executed *
* * and there diligently search for the said goods and chattels, or
articles, to-wit: Any illegally possessed drugs or controlled
substances, firearms, weapons, drug paraphernalia, photos
depicting drug use or trafficking, money, money obtained by
drug sales, records of drug sales, items used to prepare drugs for
sale of shipment, containers, safes, lock boxes used to store
drugs, documents to indicate possession or control of premises.
Any computers, computer discs, televisions, DVD’s [sic], DVD
players, digital camera’s [sic] cell phones and any other
electronic equipment with purpose to store data. Any other
items or instrumentalities used to facilitate drug use, drug
trafficking, or the crime under investigation, and that you bring
the same or any part thereof found on such search before me to
be disposed of and dealt with according to law.5

{¶34} On appeal, Gonzales first contends that the warrant was overbroad

because it gave officers “free reign to search and seize any materials they deemed

necessary[.]” (Appt’s Br. at 18). However, despite Gonzales’s argument, we find

that the warrant was sufficiently specific, as it clearly indicated items to be

5
The affidavit said the following with respect to evidence of crimes expected to be uncovered.

Before me, the undersigned Judge[,] * * * personally appeared Det. Matthew D.
Armstrong who, * * * says that he has good cause to believe and does believe that
the offense of Drug Abuse ORC 2925.11(A), Drug Trafficking ORC 2925.03(A),
Possession of Drug Paraphernalia ORC 2925.14(C)(1), has been committed and that
the persons responsible have never been placed in jeopardy thereof * * *[.]

-18-
Case Nos. 13-13-31 and 13-13-32

searched and seized that may have yielded evidence of drug possession or drug

trafficking. As the warrant did not allow intrusion into unrelated matters, we

cannot find any lack of particularity. See State v. Hale, 2d Dist. Montgomery No.

23582, 2010-Ohio-2389, ¶ 77.

{¶35} Nevertheless, even if the warrant had failed the particularity test, the

“good-faith exception” to the exclusionary rule would apply. State v. Hale, 2d

Dist. Montgomery No. 23582, 2010-Ohio-2389, ¶ 80. Under this exception,

evidence is not barred, where officers act in “objectively reasonable reliance on a

search warrant issued by a detached and neutral magistrate,” but the warrant is

“ultimately found to be unsupported by probable cause.” State v. George, 45 Ohio

St.3d 325, paragraph three of the syllabus, following United States v. Leon, 468

U.S. 897 (1984). “This exception has also been applied to allow use of evidence

where the warrant itself is supported by probable cause, but fails the particularity

requirement.” Hale, at ¶ 80 citing State v. Gritten, 11th Dist. Portage, No. 2004-P-

0066, 2005-Ohio-2082, ¶¶ 19-21. Thus, Gonzales’s argument is not well-taken.

{¶36} Next, Gonzales argues that the search warrant does not meet the

criteria for an “all persons” warrant pursuant to State v. Kinney, 83 Ohio St.3d 85

(1998). In State v. Kinney, the Supreme Court of Ohio held that “all persons on

the premises” warrants are valid and do not violate the Fourth Amendment in

limited circumstances. Id. at 90. “Where there is probable cause to support the

-19-
Case Nos. 13-13-31 and 13-13-32

search of every person within the warrant’s scope, [an all persons on the premises

warrant] will not be held invalid.” Id. In Kinney, the Court noted the danger that

an “innocent person may be swept up in a dragnet and searched.” Id. at 95.

{¶37} In addition to probable cause, the court in Kinney also mandated a

particularity requirement.

An “all persons” clause may still be “carefully tailored” to its
justifications if probable cause to search exists against each
individual who fits within the class of persons described in the
warrant. The controlling inquiry is whether the requesting
authority has shown probable cause that every individual on the
subject premises will be in possession of, at the time of the
search, evidence of the kind sought in the warrant. If such
probable cause is shown, an “all persons” provision does not
violate the particularity requirement of the Fourth Amendment.

Id.

{¶38} In Kinney, the Court also stated “all persons” warrants are often

appropriate in situations involving drug transactions. “Individuals who are present

in a drug trafficking residence raise special concerns for law enforcement.” Id. at

90. “A drug trafficking residence often has more than one person on the premises

* * * [m]ost occupants are armed and dangerous.” Id. “A search for illegal drugs

is more likely to support a search of all persons than a search for evidence of many

other crimes.” Id. at 91.

{¶39} In this case, Detective Armstrong’s affidavit detailed his history

investigating drug-related offenses and investigating this case in particular.

-20-
Case Nos. 13-13-31 and 13-13-32

Detective Armstrong’s affidavit indicated his belief that Gonzales was involved in

the possession and/or trafficking of drugs, and that people on the premises were

likely purchasing drugs, coming and going from the residence, staying for a short

period of time.6 Detective Armstrong’s affidavit even detailed one such person

who went to the residence in question for a brief stay, and was subsequently found

with marijuana. Moreover, Detective Armstrong had done a “trash pull”

indicating drugs inside the residence in question. These circumstances are all very

analogous to the Twelfth District Court of Appeals Decision in State v. Quinn,

12th Dist. No. CA2011-06-116, 2012-Ohio-3123, ¶ 32, wherein the court found a

similar “all persons” provision valid. Thus, under these specific circumstances,

we cannot find that the “all persons” provision was overbroad.

{¶40} Accordingly, Gonzales’s second assignment of error is overruled.

Third Assignment of Error

{¶41} In Gonzales’s third assignment of error, he argues that the trial court

erred by failing to invalidate the waiver of the “no knock” requirement and

suppress all evidence obtained. Specifically, Gonzales contends that there was no
6
With regard to this issue, the affidavit said specifically

It is requested that the Search Warrant be granted for any persons found at the
residence at the time the search warrant is executed pursuant to ORC 2933.32. Due
to the fact, I have found through my training & experience that persons who are
found in residences which conduct drug related activity are usually transient & only
stay for short periods of time, just enough time to purchase drugs and they then
leave. I have also found * * * that being drugs & criminal histories of persons who
are normally found inside drug related residences, the drugs are & can be concealed
inside persons pants & underwear.

-21-
Case Nos. 13-13-31 and 13-13-32

indication that law enforcement officers executing the warrant were at risk of

serious physical harm.

{¶42} In this case, the search warrant included terms waiving the

requirements of “knock and announce.” In Ohio, the “knock and announce rule”

is codified in R.C. 2935.12. “Exceptions exist, but the rule directs police officers

executing a search warrant at a residence to first knock on the door, announce their

purpose, and identify themselves before they forcibly enter the home.” State v.

Oliver, 112 Ohio St.3d 447, 2007-Ohio-372, ¶ 9 citing Wilson v. Arkansas, 514

U.S. 927, 935–936 (1995).

{¶43} R.C. 2933.231(C) authorizes a judge or magistrate issuing a search

warrant to waive the requirement

only if he determines there is probable cause to believe that, if
the law enforcement officers or other authorized individuals who
execute the warrant are required to comply with the statutory
precondition for nonconsensual entry, they will be subjected to a
risk of serious physical harm and to believe that the address of
the dwelling house or other building to be searched is the correct
address in relation to the criminal offense or other violation of
law underlying the issuance of the warrant.

{¶44} On appeal, Gonzales contends that there was no risk of serious

physical harm to law enforcement officers in this case to justify the issuance of a

“no knock” provision in the warrant.

-22-
Case Nos. 13-13-31 and 13-13-32

{¶45} Detective Armstrong’s affidavit contained information that he had

witnessed numerous “music videos” depicting Gonzales in possession of multiple

firearms. Detective Armstrong’s affidavit stated that “Firearms are also found on

persons involved in this type of activity and at the premises where this activity

occurs for the protection of the fruits of their illegal activity.” Detective

Armstrong’s affidavit indicated Gonzales had a criminal history of “inciting

violence.” In addition, Detective Armstrong testified that in in his experience

drugs and guns are interrelated. Moreover, Detective Armstrong’s affidavit

contained information that Gonzales was involved in the drug trade with his

brother JoAngelo, and that JoAngelo was affiliated with “numerous guns.” The

affidavit also contained information that the stash houses were used to store drugs

and guns. Thus, we find there was sufficient information to establish a risk of

serious physical harm to police officers.

{¶46} However, even if this information was not sufficient to establish a

risk of serious physical harm to law enforcement officers, Gonzales directs us to

no law stating that an invalid “no knock” provision requires the application of the

exclusionary rule. To the contrary, the very case Gonzales directs us to, State v.

Nunez, 6th Dist. No. 11-08-03, 2008-Ohio-6806, cites to multiple cases out of

other districts from the Ohio Appellate Courts wherein the courts have found that

an invalid “no knock” provision does not invoke the exclusionary rule. Nunez at ¶

-23-
Case Nos. 13-13-31 and 13-13-32

52 citing State v. Macke III, 12th Dist. Clinton No. CA2007–08–033, 2008-Ohio-

1888, ¶ 29–31; State v. Lam, 2d Dist. Montgomery No. 21787, 2007-Ohio-5664, ¶

8; State v. Gilbert, 4th Dist. Scioto No. 06CA3055, 2007-Ohio-2717, ¶ 39; State v.

Marcum, 7th Dist. Columbiana No. 04 CO 66, 2006-Ohio-7068, ¶ 15. Gonzales

requests that we be the first to apply the exclusionary rule to an invalid “no knock”

provision. Even if the no knock provision was invalid, we decline to extend the

law here.

{¶47} Under the facts and circumstances of this case, we cannot find that

the trial court erred in overruling Gonzales’s motion to suppress on this matter.

Accordingly, Gonzales’s third assignment of error is overruled.

Fourth Assignment of Error

{¶48} In Gonzales’s fourth assignment of error, he argues that the trial

court erred in sentencing Gonzales “to a permanent weapons disability.”

Specifically, Gonzales contends that “[n]othing in the Ohio Revised Code merits

sanctioning [Gonzales] to such a degree as to impair his rights to gun ownership.”

{¶49} At Gonzales’s sentencing hearing, when sentencing Gonzales, the

trial court stated “in the [Possession of Marijuana] case $100 fine, six month

operator’s license suspension, permanent weapons disability.” In the trial court’s

judgment entry on Gonzales’s Possession of Marijuana conviction, there is a box

checked indicating “[t]he defendant is placed under a permanent weapons

-24-
Case Nos. 13-13-31 and 13-13-32

disability pursuant to Sect. 2923.13 of the Ohio Revised Code.” Gonzales

contends on appeal that the weapons disability was improper.

{¶50} The current version of R.C. 2923.13, reads as follows.

(A) Unless relieved from disability as provided in section
2923.14 of the Revised Code, no person shall knowingly acquire,
have, carry, or use any firearm or dangerous ordnance, if any of
the following apply:

***

(3) The person is under indictment for or has been convicted of
any felony offense involving the illegal possession, use, sale,
administration, distribution, or trafficking in any drug of abuse
or has been adjudicated a delinquent child for the commission of
an offense that, if committed by an adult, would have been a
felony offense involving the illegal possession, use, sale,
administration, distribution, or trafficking in any drug of abuse.

{¶51} This statute was amended, effective September 30, 2011. Prior to the

amendment, R.C. 2923.13(A)(3) read, “The person is under indictment for or has

been convicted of any offense involving the illegal possession, use, sale,

administration, distribution, or trafficking in any drug of abuse * * *[.]”

(Emphasis Added.) In the amendment to the statute, the legislature modified the

language from any possession offenses to include only felony offenses.

{¶52} Prior to the amendment, conviction of a misdemeanor drug

possession charge would have subjected Gonzales to a weapons disability pursuant

-25-
Case Nos. 13-13-31 and 13-13-32

to the statute. Now, however, Gonzales is not under disability automatically by

virtue of his conviction.

{¶53} The State attempts to counter this by citing us to the United States

Code. Provision 18 U.S.C. § 922(g)(3) is similar in nature to our former R.C.

2923.13(A)(3). The State argues that as a weapons disability is permissible under

the US Code, it is an acceptable provision of Gonzales’s sentence here. However,

given the Ohio Legislature’s clear intent to limit the weapons disability to felony

drug offenses, we cannot find the permanent weapons disability appropriate, and it

would be unenforceable under Ohio law.

{¶54} Accordingly, Gonzales’s fourth assignment of error is sustained and

the limited portion of Gonzales’s sentence regarding a permanent weapons

disability is vacated as unenforceable under Ohio law.

{¶55} For the foregoing reasons the judgment of the Fostoria Municipal

Court in case 13-13-31 is affirmed, and the judgment of the Fostoria Municipal

Court in case 13-13-32 is affirmed in part and vacated in part.

Judgment Affirmed in Case No. 13-13-31,
and Judgment Affirmed in Part and
Vacated in Part in Case No. 13-13-32

ROGERS, J., concurs in Judgment Only as to Assignment of Error 2
PRESTON, J., concurs.

/jlr

-26-