[Cite as State v. Bertloff, 2014-Ohio-1077.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100100
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
BRIAN P. BERTLOFF, JR.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-569358-A
BEFORE: S. Gallagher, J., Jones, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: March 20, 2014
ATTORNEY FOR APPELLANT
Susan J. Moran
55 Public Square
Suite 1616
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Marcus A. Henry
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Appellant Brian P. Bertloff, Jr., appeals the denial of a motion for
suppression of evidence. For the reasons stated herein, we affirm the judgment of the
trial court.
{¶2} Appellant was indicted with eight counts of drug trafficking, four counts of
drug possession, and one count of possessing criminal tools, as well as specifications on
some counts. During the course of proceedings, appellant filed a motion for suppression
of evidence. After a hearing, the trial court denied the motion. Thereafter, appellant
entered a plea of no contest to the indictment. Following merger of the offenses, the trial
court sentenced appellant to a total prison term of one year and nine months.
{¶3} Appellant timely appealed. His sole assignment of error challenges the trial
court’s denial of his motion for suppression of evidence. Appellant claims the affidavit
supporting the search warrant in this case lacked sufficient probable cause to justify the
search of his residence.
{¶4} In determining whether there is probable cause to issue a search warrant, a
judge or issuing magistrate must
“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. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 33, quoting
Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In
reviewing a probable-cause affidavit submitted in support of a search warrant, a
reviewing court must simply ensure the affidavit provided a substantial basis for the
magistrate’s conclusion that probable cause existed. State v. George, 45 Ohio St.3d 325,
544 N.E.2d 640 (1989), paragraph two of the syllabus. Any after-the-fact scrutiny of the
sufficiency of an affidavit should not take the form of a de novo review; rather, great
deference should be accorded to the magistrate’s determination of probable cause, and
doubtful or marginal cases should be resolved in favor of upholding the warrant. Id.,
following Gates.
{¶5} In this case, Detective John Guzik averred in his affidavit that in November
2012 he received information from a confidential source (“the CS”) that a male named
“Brian” was trafficking heroin, would package the purported heroin within his residence,
identified as 2198 West 93rd Street (down) in Cleveland, and was transporting the
purported heroin in a silver Chevrolet Malibu to surrounding communities. Upon
responding to the subject residence, Det. Guzik observed a silver Chevrolet Malibu in the
driveway. The vehicle was registered to “Brian Bertloff, Jr.,” at 9302 Willard Avenue,
which police later determined was Bertloff’s grandparents’ address and was located
directly behind the subject residence. The CS positively identified “Brian” from a
Bureau of Motor Vehicles (“BMV”) photo of Brian Bertloff, Jr. (hereafter “appellant”).
{¶6} Det. Guzik further averred that in November 2012, the CS made two
controlled purchases of heroin from appellant after conversing with appellant via his cell
phone. A field test that was performed on the purchased narcotics was positive for
heroin, and the detective described the narcotics as being similar in appearance, size,
and/or packaging to heroin seized during numerous drug investigations.
{¶7} Det. Guzik averred that during the first transaction, police observed appellant
arrive at the “meet” location in his silver Chevrolet Malibu. The CS entered the vehicle
where the controlled purchase was completed, and appellant immediately returned to the
address at 2198 West 93rd Street. The second transaction occurred within the same
month and occurred within 48 hours of the submitted affidavit. After the CS made the
call for the second transaction, police observed appellant arrive at the subject residence,
enter and exit the residence, respond in his silver Chevrolet Malibu to the meet location
where the controlled purchase of heroin was completed, and immediately return to the
subject residence.
{¶8} Police also observed appellant entering and departing from the north door of
the subject residence during stationary surveillance. Det. Guzik received information
from another detective concerning a complaint of drug activity associated with the subject
residence. The complaint advised of a male, identified as Brian Bertloff, Jr., exiting the
subject residence and selling drugs to purchasers in the backyard of his grandparents’
residence.
{¶9} Upon our review, we find that the facts in the affidavit gave the judge issuing
the warrant a substantial basis for concluding that a fair probability existed that narcotics
and other contraband would be found on the premises. The cases cited by appellant are
distinguishable from this action. See State v. Gales, 143 Ohio App.3d 55, 61-62, 757
N.E.2d 390 (8th Dist.2001) (affidavit for search warrant lacked timely information); State
v. Williams, 8th Dist. Cuyahoga No. 98100, 2013-Ohio-368 (affidavit for search warrant
lacked sufficient information to link defendant to subject residence). The affidavit in
this case contains substantial information linking appellant and his drug activity to the
subject premises and conveyed timely information.
{¶10} The affidavit reflects that the police received information from a CS who
identified appellant from a BMV photo; the address listed in appellant’s BMV
information was directly behind the subject residence; the police conducted two
controlled purchases of heroin from appellant within the same month; appellant was
observed exiting and returning to the subject residence both in relation to the drug
transactions and during stationary surveillance; and the police received a separate
complaint of suspected drug activity linking appellant to the residence and reporting him
selling drugs in his grandparents’ backyard, which was directly behind the subject
residence. Affording deference to the determination of probable cause, we uphold the
validity of the search warrant.
{¶11} Accordingly, we find the trial court properly denied the motion for
suppression of evidence. Appellant’s sole assignment of error is overruled.
{¶12} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
State v. Bertloff
Combined Opinion