[Cite as State v. Arnold, Jr., 2017-Ohio-559.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2016-CA-20
:
v. : T.C. NO. 15CR410
:
VICTOR ARNOLD, JR. : (Criminal appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the ___17th __ day of _____February_____, 2017.
...........
MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
MATTHEW J. BARBATO, Atty. Reg. No. 0076058, 2625 Commons Blvd., Suite A,
Beavercreek, Ohio 45431
Attorney for Defendant-Appellant
.............
DONOVAN, P.J.
{¶ 1} This matter is before the Court on the March 30, 2016 Notice of Appeal of
Victor Arnold, Jr. Arnold appeals from his judgment entry of conviction, following his no
contest pleas, to one count of possession of heroin, in violation of R.C. 2925.11(A), and
one count of having weapons while under disability, in violation of R.C. 2923.13(A)(3),
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both felonies of the third degree. In exchange for his pleas, the State dismissed one
count of trafficking in heroin and one count of possession of cocaine. The court
sentenced Arnold to three years for each offense, to be served consecutively for a total
term of six years. We hereby affirm the judgment of the trial court.
{¶ 2} Arnold was indicted on August 10, 2015, and he pled not guilty on August
17, 2015. On October 5, 2015, Arnold filed a motion to suppress, asserting that “there
was insufficient probable cause for the issuance of the search warrant.” At the hearing
on his motion, the parties presented, as Exhibit A, the search warrant for a residence
located at 512 E. Rose St. in Springfield, where Arnold resided. Defense counsel
directed the court’s attention to the attached July 29, 2015 “Affidavit for Search Warrant”
of Detective Gerald Mitchell, containing 30 paragraphs. Paragraph 3 of the affidavit lists
Arnold’s criminal history, which includes a possession of drugs conviction in 2000, an
illegal conveyance of drugs conviction in 2003, and two possession of crack cocaine
convictions in 2008, and defense counsel argued that the information contained in the
paragraph is “stale.” Paragraph 4 provides that Arnold “was arrested for shooting a man
who owed him $110.00 in 2006” and that the case was dismissed. It further provides
that Arnold was arrested in 1999 for discharging a firearm, and that that case was also
dismissed. Defense counsel again asserted that the information was “stale,” and that
“they’re really not relevant to determining whether there is actually evidence to [sic] a
crime at 512 East Rose Street.”
{¶ 3} Defense counsel next directed the court’s attention to Paragraph 5, which
provides:
5. In October of 2013, Detective Speakman and I met with Confidential
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Informant (CI) #1281. This was the first time CI #1281 provided
information to detectives. CI #1281 advised that he/she had personal
knowledge of several 4 to 5 ounce cocaine transactions during which “Victor
Arnold” was the source of supply. CI #1281 did not know where Arnold
was living at the time. CI #1281 advised that Victor Arnold’s phone number
was 937-631-0195.
{¶ 4} Defense counsel again asserted that the information was “stale.” He further
argued that “even though the confidential informant might be given some degree of
reliability, * * * it’s the first time that the officers had ever dealt with this particular CI, so
there is no way that the officers themselves can know whether the information that they
were being given was credible or not because it’s the first time they dealt with the CI.”
Defense counsel continued, “Was this purpose in saying that they actually dealt directly
with Victor Arnold and got the drugs from him so they know he was the source of the
supply? Or did they say that there were four or five cocaine transactions between other
individuals, but they got information from somebody else that said that Victor Arnold was
the source of the supply?” Defense counsel argued “you have the situation where you are
getting information from a second, third, maybe fourth degree source down the line saying
Victor Arnold was the source of the supply, but they have no personal involvement in the
transaction itself.”
{¶ 5} Counsel for Arnold next directed the court’s attention to Paragraph 6, which
provides: “CI #1281 also advised that he/she had personal knowledge that Jason Colquitt,
who lives in Columbus, also supplies cocaine to people in Springfield, Ohio. CI #1281
advised that Jason Colquitt and Victor Arnold are brothers, and Arnold is supplied cocaine
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by Colquitt.” Defense counsel argued the paragraph “doesn’t give you a date when that
information was given, and without a date it’s impossible to determine whether that is
stale or not.” He asserted that “[i]t’s really not relevant to determining whether there is
any evidence of a crime at 512 East Rose Street.” He argued that “there’s no
corroboration to determine whether Jason Cole [sic] and Victor Arnold are brothers in the
first place even if that statement were true that Coleman [sic] was the source of the supply
to Arnold.”
{¶ 6} Defense counsel then addressed Paragraph 7, which provides:
7. In October of 2013, Detective Speakman and I met with Confidential
Informant (CI) #1269 who advised that Victor Arnold, Jr. gets cocaine from
Jason Colquitt, several ounces at a time that Arnold, in turn, sells. CI #1269
has a history of providing reliable information to the Springfield Police
Division in exchange for financial compensation. CI #1269 advised that
Jason Colquitt and Victor Arnold are brothers who have the same mother,
Juanita Colquitt. CI #1269 advised that Arnold lives at 512 E. Rose Street
with his wife, Tonya Arnold. CI #1269 advised that Arnold’s phone number
was 937-631-0195.
{¶ 7} Defense counsel asserted that “[t]hey say they have a history providing
reliable information for a financial compensation, which means the CI in and of
themselves may have a reason to lie just to get financial compensation for the information
they’ve given to the police. Again, it’s stale information.” Counsel further argued that
“there was never any corroboration given for whether or not this is actually Mr. Arnold’s
phone number, and that will become important in later paragraphs of the * * * affidavit.”
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{¶ 8} Defense counsel next addressed Paragraph 8, which provides:
8. In November of 2013, Detective Curnutte of Champaign County
Sheriff’s Office and I met with confidential informant #1269 in reference to
making a controlled buy of crack cocaine from Victor Arnold, Jr. The CI
and the CI’s vehicle were searched to make sure he/she had no other
money or drugs. CI #1269 made a recorded phone call to Arnold at 937-
631-0195. Arnold told the CI that he was at his mother’s house. The CI
was given recorded buy money, and the CI met with Arnold at Juanita
Colquitt’s house, 2007 Limestone St. CI #1269 gave Arnold the recorded
buy money in exchange for crack cocaine. CI #1269 returned to Detective
Curnutte and me, we collected the crack cocaine, and we again searched
the CI and her/his vehicle.
{¶ 9} Defense counsel asserted that “this paragraph is a little more important, I
guess for this reason because they actually say there is a CI involved.” He asserted that
“it’s stale information.” He noted that the transaction took place on Limestone Street,
“and so it’s not the same house that’s involved as they want to search now.” Defense
counsel indicated that “we might be able to conclude that he wasn’t prosecuted for that
because they don’t mention it in paragraph three.”
{¶ 10} Defense counsel next addressed Paragraph 9 of the affidavit, which
provides:
9. In checking phone records from other suspected drug traffickers
obtained by subpoena and phone data extracted from phones seized during
arrests and drug raids, I found that the number 937-631-0195 contacted the
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following individuals several times:
Andre Terrell - last contacted July 2014
David Kidd - last contacted November 2014
Marquise McPherson – last contacted October 2014
Jerry Exxon, Jr. – last contacted August 2014
Ronald Ragland II – last contacted August 2014
The “last contacted” date is the last date for which data was available.
{¶ 11} Defense counsel argued that “again, there was never any corroboration
whether that phone number actually belonged to Mr. Arnold. More importantly, two
things. One, it could be attributed to innocent behavior, which I said, if it could be
attributed to innocent behavior and not criminal activity, they can’t establish probable
cause.” Defense counsel stated, the “other thing is it’s again, stale information” that
“doesn’t supply a basis for believing that there’s evidence there was a crime at 512 East
Rose Street.”
{¶ 12} Defense counsel next addressed Paragraph 10, which provides: “All
five of the above individuals have recently been arrested for trafficking in drugs by the
Springfield Police Division I-Unit.” Defense counsel noted that “[i]t doesn’t say whether
they were convicted or not.” He asserted that “recently here it means to me that it
probably took place sometime in 2015, which is a time after Mr. Arnold may have had
contact with them. That even if he did have contact with them, it was a long time ago,
and it very well could be attributed to innocent behavior.”
{¶ 13} Defense counsel asserted that Paragraphs 11-14 “all deal with anonymous
tips.” Those paragraphs provide as follows:
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11. In March of 2015, the Springfield Police Division I-Unit received an
anonymous tip about 512 E. Rose Street that stated that a male and his
wife are here with three kids in the house. The tip stated that the
suspicious activity is “selling out of the house, the person drive up male in
house come out persons in car gets his or her product take off, sometimes,
person in car get out to go on side of red truck – get product from gas
department [sic] get back in car and take off this happen three times a day.”
The tips also advised that they had sent a previous tip on 519 E. Rose Street
by mistake and that the address was actually 512 E. Rose Street.
12. Dated April 9, 2015, the I-Unit received an anonymous tip about 512
E. Rose Street that a suspect known as “[M]oney” is selling out of the house
and making hand-offs to customers. This tip also stated that “Money kept
his product in red-like truck in gas compartment.”
13. Dated April 12, 2015, the I-Unit received an anonymous tip about 512
E. Rose Street that a male “known as Money” was “sitting in car – wait for
customer to come, they come pick up and leave – person come foot [sic] go
in house min later – they come out take off day-night. The female in the
house knows what’s going on. There are kids in the house. They don’t
care. Neither do I!”
14. Dated May 3, 2015, the I-Unit received an anonymous tip about 512
E. Rose Street. Again, they identified the suspect as “Money.” The tip
stated, “on this date, unknown person pull up behind house and gets out of
car with music so loud, goes to the back of the house with the music still
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playing loud, was there for about five minutes, went to car and took off.”
{¶ 14} Defense counsel asserted that “all of these anonymous tips all they are
alleging is that somebody appears to be, according to the anonymous tipster, somebody
appears to be selling drugs out of this house at 512 East Rose Street.” Counsel argued
that there “has to be some independent corroboration that this activity is actually taking
place, and what’s important here is, the anonymous tip people don’t say, we saw an
individual because they never mentioned Mr. Arnold by name.” According to counsel,
“[i]t never says anything about this individual having any drugs on their person, in their
hand, that they actually saw them selling drugs or handing drugs to a person and taking
money in exchange.” Defense counsel argued that probable cause that the person who
is the subject of the anonymous tips is Arnold, and that money and drugs were
exchanged, is lacking. He asserted that “it very well could be innocent behavior involved
here.”
{¶ 15} Regarding Paragraph 15, defense counsel argued, “I’m not really sure what
this paragraph has to do with what the relevance is to this finding drugs at 512 East Rose
Street.” Paragraph 15 provides:
15. On May 20, 2015, officers were dispatched to 411 Indiana Ave.,
Springfield, Clark County, Ohio and spoke to Charlene Bullard. Ms. Bullard
reported that Victor L. Arnold, Jr. came to her home with his brother causing
problems and violating a protection order case 15-DP-0277. She stated
that Victor Arnold, Jr. came to her home with his brother and got into a
verbal argument with her family filming the incident on his cell phone. Ms.
Bullard stated that she advised them about the protection order and told
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them to leave. After several minutes he stopped recording and left. Two
other witnesses observed Victor Arnold, Jr. in the vehicle recording the
incident. Ms. Bullard also told officers that on May 19, 2015 her car was
set on fire and Victor Arnold, Jr. is the suspect. She told officers that she
fears for her life that Victor Arnold, Jr. will hurt her. Officers located Victor
Arnold, Jr. at 512 E. Rose St. and arrested him for violation of a protection
order on May 20, 2015.
{¶ 16} Defense counsel asserted that “[t]hey really don’t provide us with any
information that 512 East Rose Street may contain evidence of a crime.”
{¶ 17} Defense counsel next addressed Paragraph 16, which provides:
16. In May of 2015, Detective Collins received a complaint from an
individual who left their phone number. The caller advised that Victor L.
Arnold who is 34 years old is supplying 512 E. Rose St. The caller advised
that Arnold is dropping off crack and powder cocaine to 512 E. Rose Street
and is driving a red or maroon Ford Explorer that has gold trim and is on
22’’ rims. The caller described Arnold as a short black male with dread
locks. The caller also stated that Victor is dangerous and has stated that
he’d never go back to prison. The caller stated that Victor has thrown a
Molotov cocktail through an ex-girlfriend’s window. Based upon the nature
and context of this statement, I believe that Victor is stating that he will do
anything to avoid going back to prison, including causing serious physical
harm to officers.
{¶ 18} Defense counsel argued as follows:
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* * * What needs to be recognized here, I guess, is that it never says
whether the officers ever called back to verify who this individual is.
They don’t say they talked to the individual personally or whether
they got a voice mail or whether they ever tried to call the person back to
verify the number that was left, if a number was left, a person that they were
able to identify; and then this person basically, again, it just says that they
believe that there is drugs at 512 East Rose Street.
They don’t say how they know that this is going on. Another thing
they mention is there is a red or maroon Ford Explorer involved here, and
that vehicle may become somewhat important here in determining whether
Mr. Arnold lives at 512 East Rose Street or not because later on they’re
going to talk quite a bit about this red truck seen at or around 512 East Rose
Street, seeing a person in it, and I guess that leads us to believing that Mr.
Arnold lives at 512 East Rose Street; but this doesn’t give any information
as to whether there’s actually drugs or evidence of a crime could be found
at 512 East Rose Street.
{¶ 19} Defense counsel then addressed Paragraph 17 of the affidavit, which
provides:
17. On June 12, 2014, Victor Arnold, Jr. was stopped by German
Township P.D. while Arnold was driving a maroon Ford Explorer with Ohio
registration GDH5627. He was charged with possession of marijuana in
addition to OVI and Speed. Ohio BMV records indicate that vehicle is
currently registered to Tonya Arnold at 512 E. Rose St.
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{¶ 20} Defense counsel argued that “again, I’m not sure how this is relevant to
drugs being found at 512 East Rose Street that said that Mr. Arnold was charged with
possession of marijuana and charged with an OVI in June of 2014.” He asserted that
“the information * * * is stale, and it doesn’t give us any basis to believe there’s any
evidence of a crime found at 512 East Rose Street.” He asserted that “what they are
trying to say by that is the vehicle that Mr. Arnold was in is registered to Tonya Arnold
who lives at 512 East Rose Street.”
{¶ 21} Defense counsel argued that Paragraph 18, “again, is an anonymous tip.”
That paragraph provides:
18. In June and July of 2015 the Springfield Police Division I-Unit received
five anonymous complaints on 512 E. Rose St. The complaints described
a suspect referred to an “Money” meeting with people in cars in front of the
house as well as people walking up to the house. The complaints also
described hand to hand transactions between “Money” and the people with
whom he meets.
{¶ 22} Defense counsel asserted that since “it doesn’t say, I think Mr. Arnold gets
the benefit of the doubt that this is an anonymous tipster; and if that’s the case, then there
has to be some independent corroboration, which that kind of a tipster is to be given the
least amount of credibility.” Defense counsel argued that “[t]hey don’t say that this
person they described as ‘Money’ is Mr. Arnold.” He asserted, “It’s in front of 512 East
Rose Street. Again, there is no indication that there was actually drugs exchanged for
money. Whether anybody ever saw drugs.” Defense counsel further argued that “it can
just be based on innocent behavior. Somebody meeting somebody out in front of the
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house in a car, having a brief conversation and the two parting ways.”
{¶ 23} Defense counsel next directed the court’s attention to Paragraph 19, which
provides: “On June 18, 2015, Detective Collins performed surveillance at 512 E. Rose
Street and saw a maroon Ford Explorer on large rims parked in front of 512 E. Rose
Street. Detective Collins saw a black male driver leave in the vehicle. The vehicle
returned to 512 E. Rose Street later that day with at least one passenger.” Defense
counsel argued as follows: “June of 2015, the detective actually gets involved here and
they start performing surveillance at 512 East Rose Street where they say they see this
maroon Ford Explorer parked in front of 512 East Rose Street.” He asserted that the
“only purpose in that is trying to establish based on that Mr. Arnold lives at this particular
residence, which may or may not establish that. It still doesn’t give us any indication yet
that there is probable cause to believe that there is evidence of a crime found at that
address.”
{¶ 24} Defense counsel next addressed Paragraph 20 of the affidavit, which
provides:
20. On July 10, 2015 Sgt[.] Bennett saw a white Dodge Charger, Ohio
registration EGK4548 parked in front of 512 E. Rose St. Later in the day
around approximately 1315 hours, Officer Anderson saw a male fitting the
description of Victor Arnold, Jr. standing near this car which was still parked
in front of the residence. On July 23, I learned this vehicle was rented by
Tonya Arnold.
{¶ 25} Defense counsel asserted that “[t]hey believe he was driving [the Charger]
at one time, and the Dodge Charger was parked in the vicinity of 512 East Rose Street,
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which again, I guess, to they’re [sic] trying to link Mr. Arnold with the property in question
being involved at that 512 East Rose Street.”
{¶ 26} Defense counsel then directed the court’s attention to Paragraph 21 of the
affidavit, which provides:
21. In July of 2015, I received information from Confidential Source (CS)
#1289. CS #1289 has provided reliable information to detectives, that
detectives were able to independently verify, that helped lead to a search
warrant and seizure of a large amount of narcotics and U.S. Currency. CS
#1289 advised that “Vic Arnold” is selling crack cocaine, power cocaine, and
heroin. CS #1289 stated that Arnold is still on Rose Street; however, he
meets customers on Clay Street near an alley around the corner from his
house on Rose Street. CS #1289 also provided Arnold’s current phone
number, 937-631-6424.
{¶ 27} Defense counsel asserted, “They give a phone number. Now it’s a
different phone number, but again, no corroboration that it’s actually Mr. Arnold’s phone
number.” He argued that the “other thing here is, this informant is not saying that he
personally was involved in any transactions with Mr. Arnold. He’s just saying that he has
knowledge that Mr. Arnold was involved in the transactions somehow.” Defense counsel
further asserted that “it’s to be given very little credibility that drugs were going to be found
at 512 East Rose Street because who knows where the confidential informant may have
gotten that information from in light of the fact that he ever [sic] actually said, I was
involved in the transactions or the transfer of the drugs themselves.”
{¶ 28} Regarding Paragraph 22, Defense counsel argued, “I’m not sure that has a
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lot of relevance here. Just trying to determine, I guess, that Mr. Arnold may have lived
at this house at 512 East Rose Street. Paragraph 22 provides:
22. On July 20, 2015, Detective Collins spoke to a known employee at
Springfield Housing Authority. The employee advised that 512 E. Rose
Street was a Section 8 house that was rented by Tonya Arnold. The
employee advised that the Metro staff was aware that Tonya Arnold lived
there with her husband, Victor Arnold, Jr., and their three children. In
reviewing the records, the employee advised that Tonya Arnold failed to add
her husband as a member of the household.
{¶ 29} Defense counsel next addressed Paragraph 23 of the affidavit, which
provides:
23. On July 21, 2015, Sgt. Bennett and I drove by 512 E. Rose Street,
westbound. Sgt. Bennett saw a maroon Ford Explorer on rims parked
behind 512 E. Rose Street. As we crossed Clay Street we saw Victor
Arnold, Jr. in the middle of Clay Street, just north of E. Rose Street, walking
eastbound away from an occupied vehicle that was parked on the west
curb. As we drove by, Arnold turned around and appeared to be
communicating with the occupants of the parked vehicle.
{¶ 30} Counsel for Arnold argued, “Again, it’s an innocent behavior type thing. It
doesn’t establish probable cause.”
{¶ 31} Defense counsel directed the court’s attention to Paragraph 24 of the
affidavit, which provides:
24. On July 22, 2015, I drove by 512 E. Rose Street and by the area on
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Clay Street where we had seen Victor Arnold, Jr. the day before. I saw a
maroon Explorer on rims parked behind 512 E. Rose St. The alley behind
the house provides easy access to Clay Street where Sgt. Bennett and I
saw Victor Arnold, Jr. on July 21, 2015. See attached Exhibit A, showing
an overhead view of the area. 512 E[.] Rose St. is marked on the Exhibit,
and the area where Victor Arnold, Jr. meets with customers is marked with
a circle. The alley behind 512 E. Rose St. is clearly visible, and abuts a
large vacant lot to the north.
{¶ 32} Regarding Paragraph 24, defense counsel asserted that “it’s just saying that
they saw Mr. Arnold in the area of 512 East Rose Street, but it doesn’t say that he’s
necessarily doing anything.” He asserted that he was “not sure if that’s really relevant to
establish probable cause or if it doesn’t establish probable cause, because it could be
attributed to innocent behavior. It might go towards Mr. Arnold lives at 512 East Rose
Street.”
{¶ 33} Defense counsel next addressed Paragraph 25, which provides:
25. On July 23, 2015, I drove by 512 E. Rose Street at approximately 1:25
PM. There was a white Dodge Charger parked directly in front of the
house. The Charger had Ohio registration EGK4548 which is registered to
PV Holding Corporation. I contacted Jill Willis with Avis Car Rental. He
advised that the vehicle was rented by Tonya Arnold on July 8, 2015 and
was due back on July 22, 2015.
{¶ 34} According to defense counsel, “they’re maybe trying to establish that Arnold
lives at 512 East Rose Street but not establishing probable cause or any evidence of a
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crime found at that address.” Defense counsel repeated these arguments as to Paragraph
26, which provides: “26. According to the Ohio Law Enforcement Gateway (OHLEC)
Victor Arnold, Jr. listed 512 E. Rose Street in Springfield, Ohio as his address on his State
of Ohio ID issued on April 9, 2014.”
{¶ 35} Defense counsel next addressed Paragraphs 27 -28, which provide as
follows:
27. On 7-27-15, at approximately 12:35 PM, Officer Hoying saw the white
Dodge Charger with Ohio registration EGK4548 parked near 512 E. Rose
Street. Officer Hoying also saw Victor Arnold, Jr. standing at the driver
door looking around before getting in the driver’s door and driving away from
the area. I asked Officer Hoying what Arnold was wearing, and Officer
Hoying stated that he was paying more attention to the license plate, but he
thought Arnold was wearing a “sky blue” shirt. Officer Hoying also advised
that Arnold had his hair in a ponytail.
28. After speaking with Officer Hoying, on 7-27-15, I set up a surveillance
camera on Clay St. to monitor the area that CS #1289 described where
Victor Arnold, Jr. meets customers. The following was observed in the area
of Clay St. and the alley that runs behind 512 E. Rose Street.
3:27 PM – Video recording activated around this time and there was a dark
Tahoe style SUV parked on the east curb of Clay Street, just north of E.
Rose Street, near the alley that runs east and west behind 512 E. Rose
Street.
3:32 PM – Victor Arnold, Jr. wearing a light blue shirt, exited the alley and
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put his left hand into the passenger side window of the Tahoe style SUV.
Approximately six seconds later Arnold walked away from the vehicle and
the vehicle left northbound on Clay Street. Arnold walked east in the alley
toward the rear of 512 E. Rose Street.
3:55 PM – A dark colored SUV, possibly a Ford Explorer, arrived from the
north and parked on the west curb of Clay Street across the street from the
same alley as mentioned above. Nobody exited or entered the vehicle.
4:19 PM – Victor Arnold, Jr. wearing the same clothes with his hair in a
ponytail, exited the alley and crossed Clay Street. He met with the
occupants of the Explorer via the driver side window.
4:22 PM – Victor Arnold, Jr. walked away from the Explorer and returned to
the alley eastbound toward his house. The Explorer immediately left the
area as well.
4:27 PM – A white Charger, likely the same one seen in front of 512 E. Rose
recently, leaves the area from E. Rose Street to N. Clay Street northbound.
{¶ 36} Defense counsel argued that Paragraphs 27 and 28 fail to establish
probable cause, and that the conduct described in Paragraph 28 “can be attributable to
innocent behavior.” He stated that “in none of them do they say that they actually know
or have probable cause to believe that there is any drugs involved for the matter.”
{¶ 37} The prosecutor argued that “the standard of review is not whether you would
find probable cause in this case, but whether you would find that the issuing magistrate *
* * has substantial basis from which to find probable cause.” He stated that “if the Court
takes the totality of the search warrant together, it’s clear that there was, in fact, probable
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cause.” The prosecutor argued as follows:
There is a history of this defendant going back several years showing
that he is, in fact, a drug dealer. That’s very important and relevant to the
finding of probable cause in this case.
And the fact that he’s been nothing but a drug dealer for fifteen years
is pretty relevant.
There is confidential informant information, confidential source
information that is very specific about his activities; and the observations of
the officers bear that out.
There is information from one of the sources that he meets people in
the alley behind the house where off the alley behind the house [sic], around
the corner, which is exactly what the officer sees and that that’s drug
activity.
And two days before the search warrant is signed, that is exactly
what they saw. He sticks his hand in the car and meets with somebody for
a very short period of time. People wandering through the neighborhood.
One of them sat and waited for quite some time before he came over and
met with him.
As to paragraph sixteen, I’d say that’s not actually an anonymous
complaint. It indicates the person left a phone number. That’s the option
of being anonymous is giving the police a way to contact you.
Again, all the information taken together it’s clear that there was a lot
more than enough sufficient probable cause that there would be drugs at
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this address, and that the defendant was selling heroin out of it and other
drugs.
And finally, although I don’t think it’s necessary so as not to waive
the argument, we would also point out that if this Court were to find for some
reason that there is not enough basis for the issuing judge to find probable
cause, certainly the officers in this case acted in good faith.
We have no reason to believe that they did not possess a valid
search warrant when they executed the warrant.
{¶ 38} In overruling the motion to suppress, the trial court indicated in part as
follows:
***
The Court finds that the affidavit accompanying the aforementioned
warrant contains sufficient indicia of probable cause to pass muster under
the Fourth Amendment to the United States Constitution.
Upon being presented with the information contained in the affidavit,
a reasonable prudent person would believe that there is a fair probability
that the place to be searched contained evidence of a crime. Therefore,
the Court concludes that the issuing judge had a substantial basis for
concluding that probable cause existed[.]
{¶ 39} Arnold asserts the following assignment of error:
THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S
MOTION TO SUPPRESS ALL EVIDENCE SEIZED AS A RESULT OF THE
JULY 31, 2015 SEARCH OF THE RESIDENCE AT 512 E. ROSE ST.,
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WHICH SEARCH WAS AUTHORIZED BY A WARRANT THAT WAS NOT
BASED ON PROBABLE CAUSE.
{¶ 40} Arnold asserts that Mitchell’s affidavit “goes into great detail about law
enforcement ability to verify Mr. Arnold’s identity, his residence and the vehicle it [sic]
drives. However, very little reliable, verified information is provided as to probable cause
that narcotics would be found in his residence when it was searched.” Arnold argues
that “law enforcement attempts to bolster their affidavit with allegations of previous drug
convictions and anonymous tips. There is no direct evidence establishing probable
cause that contraband will be found in Mr. Arnold’s residence on the date searched.”
Arnold asserts that “Paragraph 28 of the affidavit herein alleges suspected criminal
activity that involved Mr. Arnold as he spoke to someone in the alley of Clay Street. This
is a classic example of guilt by association. Law enforcement has no personal
knowledge that Mr. Arnold or the occupants of the vehicle he approached were in violation
of any laws of this State.” Arnold asserts that the “Affidavit herein alleges activity that
span[s] from 2013 until July of 2015. Out of 30 paragraphs, only one alleges suspected
criminal activity around the time the search warrant is requested. (Para. 28).”
{¶ 41} The State responds that the “search warrant at issue in this case provided
the issuing judge with sufficient evidence that when looked at in totality showed a fair
probability that contraband or evidence of a crime, in this case trafficking in drugs, would
be found at a p[articular place.” According to the State, “Appellant at the suppression
hearing and here on appeal seeks to look at the search warrant paragraph-by-paragraph
to argue that there was not sufficient evidence for the court to sign the search warrant.”
The State argues that the “warrant in this case provided the court with the background
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information that led the Springfield Police Division I-Unit to begin an investigation into
Victor Arnold, Jr. and how through their investigation into Appellant that they came to
believe that he was selling drugs out of 512 E. Rose Street in Springfield, Ohio.” The
State asserts that there “is also information from a confidential informant in the warrant at
paragraph 21 that gives specific information to the officers about where Appellant is
selling drugs. There are also tips in paragraphs 13, 14, 16 and 18 that describe the drug
activity happening at Appellant’s address.” The State argues that officers did not
“request a warrant based on these tips and confidential informant sources alone, they
further investigate and confirm this information.” Finally, the State asserts that if “this
Court finds that there was not enough of a basis for the issuing judge to find probable
cause then certainly the officers executing the search warrant in this case acted in good
faith as they were conducting a search pursuant to a search warrant signed by a judge.”
{¶ 42} As this Court has previously noted:
We begin our analysis with the governing legal standards. Under
Crim.R. 41, a request for a search warrant requires a sworn affidavit
“establishing the grounds for issuing the warrant.” Crim.R. 41(C)(1). The
judge may issue a search warrant if the judge finds, based on the
information in the affidavit, that “probable cause for the search exists.”
Crim. R. 41(C)(2). “The finding of probable cause may be based upon
hearsay in whole or in part, provided there is a substantial basis for believing
the source of the hearsay to be credible and for believing that there is a
factual basis for the information furnished.” Id. “In determining the
sufficiency of probable cause in an affidavit submitted in support of a search
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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, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph one
of the syllabus, quoting Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct.
2317, 76 L.Ed.2d 527 (1983).
State v. McClain, 2015-Ohio-3690, 41 N.E.3d 871, ¶ 5 (2d Dist.).
{¶ 43} “A search warrant’s supporting affidavit has a presumption of validity.
State v. Roberts, 62 Ohio St.2d 170, 178, 405 N.E.2d 247 (1980).” State v. Oloff, 2d
Dist. Greene No. 2012-CA-34, 2012-Ohio-6048, ¶ 12. “The standard of probable cause
is a fair probability, not a prima facie showing of criminal activity.” State v. Deleon, 2d
Dist. Montgomery No. 17574, 2000 WL 646502, *12 (May 19, 2000), citing State v.
George.
{¶ 44} In George, at paragraph two of the syllabus, the Supreme Court of Ohio set
forth our deferential appellate standard of review as follows:
In reviewing the sufficiency of probable cause in an affidavit
submitted in support of a search warrant issued by a magistrate, neither a
trial court not an appellate court 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
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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.
{¶ 45} As this Court has noted:
An affidavit in support of a search warrant must present timely
information and include facts so closely related to the time of issuing the
warrant as to justify a finding of probable cause at that time. State v. Jones,
72 Ohio App.3d 522, 526, 595 N.E.2d 485 (6th Dist. 1992). No arbitrary time
limit dictates when information becomes “stale.” Id. The test is whether
the alleged facts justify the conclusion that certain contraband remains on
the premises to be searched. State v. Floyd, 2d Dist. Darke No. 1389,
1996 WL 139787 (Mar. 29, 1996). If a substantial period of time has
elapsed between commission of the crime and the search, the affidavit must
contain facts that would lead the judge to believe that the evidence or
contraband is still on the premises before the judge may issue a warrant.
State v. Yanowitz, 67 Ohio App.2d 1441, 147, 426 N.E.2d 190 (8th Dist.
1980).
“Ohio Courts have identified a number of factors to consider in
determining whether the information contained in an affidavit is stale,
including the character of the crime, the criminal, the thing to be seized, as
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in whether it is perishable, the place to be searched, and whether the
affidavit relates to a single isolated incident.” State v. Ingold, 10th Dist.
Franklin No. 07AP-648, 2008-Ohio-2303. “[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. Whether the proof meets
this test must be determined by the circumstances of each case.” Sgro v.
United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932).
State v. Richardson, 2d Dist. Greene No. 2011 CA 2, 2012-Ohio-1232, ¶ 10-11.
{¶ 46} Regarding informants, as this Court has previously noted:
“Courts have generally recognized three categories of informants: (1)
the identified citizen informant, (2) the known informant, i.e., someone from
the criminal world who has a history of providing reliable tips, and (3) the
anonymous informant.” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-
6085, 817 N.E.2d 864, ¶ 36, citing Maumee v. Weisner, 87 Ohio St.3d 295,
300, 720 N.E.2d 507 (1999).
“Where a confidential or anonymous informant is the source of the
hearsay, the ‘informant’s veracity, reliability and basis of knowledge are all
highly relevant’ in a totality of the circumstances probable cause
determination. Gates at 230 (internal quotations omitted). There must be
some basis in the affidavit to indicate the informant’s credibility, honesty or
reliability. An affidavit which contains detailed information from informants
(permitting an inference that illegal activity was personally observed by the
informants), police corroboration of an informant’s intelligence through its
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own independent investigation, or additional testimony by the affiant helps
to bolster and substantiate the facts contained within the affidavit. While
individual facts and statements themselves may not separately support a
probable cause determination, a reviewing court must weigh all of the
components together because ‘[p]robable cause is the sum total of [all]
layers of information.’ ” (Citations omitted.) State v. Harry, 12th Dist. Butler
No. CA2008-01-0013, 2008-Ohio-6380, ¶ 20.
State v. Mitchell, 2d Dist. Montgomery No. 25402, 2013-Ohio-622, ¶ 19-20.
{¶ 47} As this Court has further noted, while an informant’s veracity, reliability and
basis of knowledge are highly relevant factors to the determination of probable cause,
“those factors are not separate and independent requirements but, rather, ‘intertwined
issues that may usefully illuminate the commonsense, practical question whether there is
“probable cause” to believe that contraband or evidence is locates a particular place.’ ”
State v. Harris, 2d Dist. Montgomery No. 18913, 2002 WL 1041868, * 1 (May 24, 2002),
quoting Gates at 320. “Accordingly, an informant’s tip may be reliable despite the
deficiency in one factor where there is a strong showing of another factor or some other
indicia of reliability.” Harris, citing Gates at 233.
{¶ 48} Finally, we note that the “Supreme Court of the United States held that
evidence obtained in violation of the Fourth Amendment by an officer acting in objectively
reasonable reliance on a search warrant issued by a neutral and detached magistrate
need not be excluded from state criminal prosecution. (Citations omitted).” State v.
Crawford, 2d Dist. Montgomery No. 16830, 1998 WL 754556, *4 (Oct. 30, 1998).
{¶ 49} Having reviewed the affidavit thoroughly, we conclude that the issuing
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judge had a substantial basis for concluding that probable cause existed that drugs were
present at 512 E. Rose Street at the time the warrant was issued. We initially note that
Mitchell is an experienced police officer. His affidavit provides, at Paragraph 1, as
follows:
1. * * * During my time in the Intelligence Unit, I have been involved in
narcotics related arrests, executed search warrants that resulted in the
seizure of narcotics, and supervised the activities of informants who have
provided information in drug trafficking investigations. Through my training
and experience, I am familiar with the manner in which persons involved in
the illicit distribution of controlled substances often operate. These people
usually attempt to conceal their identities, as well as the locations at which
they reside, and where they store controlled substances and the illegal
proceeds derived. * * *
{¶ 50} While the initial paragraphs of the Affidavit relate to Arnold’s prior criminal
history and not events immediate to the search, the paragraphs do, however, provide a
background for the I-Unit’s investigation into Arnold’s activities. In the months leading
up to July, 2015, the police received repeated anonymous tips that the male resident of
512 E. Rose Street was “selling out of the house,” and that “Money” was “making handoffs
to customers” there. Victor Arnold was located at the Rose Street address on May 20,
2015 and arrested for violating a restraining order. In June and July of 2015, the I-Unit
received five anonymous complaints regarding “hand to hand transactions” at the Rose
Street address. In July of 2015, CS #1289, advised that Arnold “is selling crack cocaine,
powder cocaine, and heroin.” Specifically, CS #1289 indicated that “Arnold is still on
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Rose Street; however, he meets customers on Clay Street near an alley around the corner
of his house on Rose Street.” CS # 1289 previously provided reliable information “that
detectives were able to independently verify, that helped lead to a search warrant and
seizure of a large amount of narcotic and U.S. Currency.” On July 20, 2015, Detective
Collins was advised by a known employee of the Springfield Housing Authority that Arnold
resided at 512 E. Rose Street with his wife, Tonya Arnold, who rented the home. On July
21, 2015, Mitchell observed Arnold walking away from an occupied vehicle on Clay Street
in the area described by CS # 1289. On July 27, 2015, Mitchell set up surveillance in
the area described by CS #1289, and video revealed Arnold approach a vehicle from the
alley behind his home and put his left hand into the vehicle on the passenger side. Six
seconds later, “Arnold walked east in the alley toward the rear of 512 E. Rose Street,”
and the vehicle drove away. On the same day, surveillance video depicted Arnold
approach another vehicle in the same area and meet with the occupants on the driver’s
side of the car. Shortly thereafter, Arnold “returned to the alley eastbound toward his
house,” and the second vehicle “immediately left the area as well.”
{¶ 51} According great deference to the issuing judge’s determination of probable
cause, we conclude that the timely facts alleged in the affidavit support an inference that
Arnold was removing drugs he stored at his home and selling them to customers in waiting
cars when he was observed by Mitchell on July 21, 2015 and twice on surveillance video
on July 27, 2015, and that there was accordingly a fair probability that drugs would be
found in his home. Accordingly, Arnold’s sole assignment of error is overruled, and the
judgment of the trial court is affirmed.
..........
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HALL, J. and WELBAUM, J., concur.
Copies mailed to:
Megan M. Farley
Matthew J. Barbato
Hon. Douglas M. Rastatter