[Cite as State v. Lair, 2018-Ohio-3112.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. John W. Wise, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 17 CAA 09 0064
DAVID M. LAIR, JR. :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Delaware County
Court of Common Pleas, Case No.
17CRI030136
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 3, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O’BRIEN TOM WALDECK
PROSECUTING ATTORNEY 2 West Winter Street, Ste. 301
BY: KIMBERLY BURROUGHS Delaware, OH 43015
140 North Sandusky Street
Delaware, OH 43015
[Cite as State v. Lair, 2018-Ohio-3112.]
Gwin, J.,
{¶1} Defendant-appellant David M. Lair, Jr. [“Lair”] appeals the May 25, 2017
Judgment Entry of the Delaware County Court of Common Pleas overruling his motion to
suppress.
Facts and Procedural History
{¶2} Detectives of the Delaware County Sheriff's Department prepared an
affidavit in support of an application for a search warrant to search at 101 Edgevale Road,
Columbus, Ohio 43209 for evidence involved in the commission of the crimes of theft and
breaking and entering. The residence was identified in the affidavit and the warrant as the
“Lair residence.” The warrant to search also contained a detailed physical description of
the home.
{¶3} The affidavit in support of the warrant indicated that David Lair was
identified by “DCSO Criminal Intelligence Analyst Brook Segaard” as an individual
captured on surveillance footage breaking and entering into WidePoint Integrated
Systems and stealing $24,845.60 worth of cell phones and other devices from the
premises. It further indicated that four of the stolen devices were sold at an ecoATM, an
automated teller machine designed for the sale of used technology. During the
transaction, the ecoATM photographed David Lair and his wife, Wendy Lair, standing in
front of the machine. The ecoATM also photographed the driver's license of Wendy Lair,
which listed 101 Edgevale Road, Columbus, Franklin County, Ohio 43209 as her home
address. The search warrant issued by Judge Peeples of the Franklin County Municipal
Court was executed a few hours after it was issued by Detectives Overly, Yates, and
Delaware County, Case No. 17 CAA 09 0064 3
Gannon of the Delaware County Sheriff's Office. Officers recovered five additional
iPhones from the home.
{¶4} On March 1, 2017, Lair was indicted on three felony charges, including a
fifth degree felony of breaking and entering in violation of R.C. 2911.13(A), a fourth degree
felony theft in violation of R.C. 2913.02(A)(1), and a fifth degree felony receiving stolen
property in violation of R.C. 2913.51(A). On April 27, 2017, Lair filed a motion to suppress
the evidence obtained after execution of the search warrant. In his written motion, Lair
argued that the affidavit filed in support of the search warrant did not sufficiently establish
probable cause to support the warrant. Specifically, Lair argued that the affidavit did not
sufficiently state a nexus between the residence to be searched and the evidence to be
seized.
{¶5} The trial court held an evidentiary hearing on Lair’s motion to suppress on
May 24, 2017. Detective Overly testified that he wrote arrest warrants for David and
Wendy Lair for the commission of the breaking and entering and theft offenses at
WidePoint Integrated Systems. Those arrest warrants were supported by an affidavit of
probable cause. Detective Overly testified that Detective Chuck Gannon, also of the
Delaware County Sheriff’s Office, wrote the search warrant. According to Detective
Overly, Detective Gannon copied the text of Detective Overly's arrest warrant probable
cause affidavit into the probable cause affidavit used to support the search warrant.
Detective Overly testified that, at the time he and other officers executed the search
warrant signed by Judge Peeples, they had no reason to believe the warrant itself was
invalid.
Delaware County, Case No. 17 CAA 09 0064 4
{¶6} After hearing all evidence, the trial court denied Lair's motion to suppress.
The court agreed with Lair and found that the affidavit offered to support the warrant was,
in fact, insufficient to prove probable cause because it failed to sufficiently state, "why the
property is where [the detectives] say it is.” T. at 47, 50. The court then considered
whether the warrant was "so totally inadequate" that it would have "raised the awareness"
of the detectives who sought the warrant such that they "should have known better" and
whether the detectives "executed this warrant in good faith.” T. at 50. The court found
that the detectives did not act "falsely or knowingly," and that no officer misconduct was
involved in the execution of the warrant. T. at 52. At most, the court found, the officers
had "probably" acted negligently. T. at 52. Given that, the court declined to suppress the
evidence, holding that the matter fell within "the exception of good faith" to the
exclusionary rule. T. at 52. The trial court filed a Judgment Entry incorporating its findings
and overruling Lair’s motion to suppress on May 25, 2017.
{¶7} Lair subsequently pled no contest to count two of the indictment, and the
state agreed to dismiss counts one and three. The trial court imposed a term of
imprisonment on that offense.
Assignment of Error
{¶8} Lair raises one assignment of error,
{¶9} “I. THE TRIAL COURT ERRORED IN OVERRULING THE DEFENDANT-
APPELLANT'S MOTION TO SUPPRESS EVIDENCE FILED ON MAY 25, 2017.”
STANDARD OF APPELLATE REVIEW.
{¶10} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 797 N.E.2d 71, 74, 20030-
Delaware County, Case No. 17 CAA 09 0064 5
Ohio-5372 at ¶ 8. When ruling on a motion to suppress, the trial court assumes the role
of trier of fact and is in the best position to resolve questions of fact and to evaluate
witness credibility. See State v. Dunlap (1995), 73 Ohio St.3d 308, 314, 652 N.E.2d 988;
State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583. Accordingly, a reviewing
court must defer to the trial court's factual findings if competent, credible evidence exists
to support those findings. See Burnside, supra; Dunlap, supra; State v. Long (1998), 127
Ohio App.3d 328, 332, 713 N.E.2d 1; State v. Medcalf (1996), 111 Ohio App.3d 142, 675
N.E.2d 1268. However, once this Court has accepted those facts as true, it must
independently determine as a matter of law whether the trial court met the applicable legal
standard. See Burnside, supra, citing State v. McNamara (1997), 124 Ohio App.3d 706,
707 N.E.2d 539; See, generally, United States v. Arvizu (2002), 534 U.S. 266, 122 S.Ct.
744; Ornelas v. United States (1996), 517 U.S. 690, 116 S.Ct. 1657. That is, the
application of the law to the trial court's findings of fact is subject to a de novo standard
of review. Ornelas, supra. Moreover, due weight should be given “to inferences drawn
from those facts by resident judges and local law enforcement officers.” Ornelas, supra
at 698, 116 S.Ct. at 1663.
ISSUE FOR APPEAL
Whether the search warrant issued for the search of the Lair residence was so
obviously invalid that the officers' conduct in relying on the warrant falls beyond the scope
of the good faith exception to the Fourth Amendment exclusionary rule, and evidence
gathered during the search of the Lair residence should have been suppressed.
{¶11} In reviewing the affidavit in this case, we are guided by the following
instruction by the Ohio Supreme Court: ““[R]eviewing courts may not substitute their own
Delaware County, Case No. 17 CAA 09 0064 6
judgment for that of the issuing magistrate by conducting a de novo determination as to
whether the affidavit contains sufficient probable cause upon which the reviewing court
would issue the search warrant. On the contrary, reviewing courts should accord great
deference to the magistrate’s determination of probable cause, and doubtful or marginal
cases in this area should be resolved in favor of upholding the warrant.” State v. George,
45 Ohio St.3d 325, 330, 544 N.E.2d 640 (1989), paragraph two of the syllabus; Illinois v.
Gates, 462 U.S. 213, 238–239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), internal citations
omitted. “‘[T]he duty of a reviewing court is simply to ensure that the magistrate had a
‘substantial basis for * * * conclud[ing]’ that probable cause existed.” State v. George,
supra at 329, 544 N.E.2d 640, citing Gates, 462 U.S. at 238–239, 103 S.Ct. 2317. See
also, State v. Norman, 5th Dist. Guernsey No. 2010-CA-21, 2011-Ohio-568, 2011 WL
415000 at ¶ 33.
{¶12} In assessing whether a party has met its burden of proof, the Ohio Supreme
Court has stated, “[t]he degree of proof required is determined by the impression which
the testimony of the witnesses makes upon the trier of facts, and the character of the
testimony itself. Credibility, intelligence, freedom from bias or prejudice, opportunity to
be informed, the disposition to tell the truth or otherwise, and the probability or
improbability of the statements made, are all tests of testimonial value. Cross v. Ledford,
161 Ohio St. 469, 477, 120 N.E.2d 118, 123 (1954). See also, Rice v. City of Cleveland,
144 Ohio St. 299, 58 N.E.2d 768 (1944)”. “In determining the sufficiency of probable
cause in an affidavit submitted in support of a search warrant, ‘[t]he task of the issuing
magistrate is simply to make a practical, commonsense decision whether, given all the
circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of
Delaware County, Case No. 17 CAA 09 0064 7
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, 238–39, 103 S.Ct. 2317, 76 L.Ed.2d 527. See also, State v.
Norman, supra, 2011-Ohio-568, 2011 WL 415000, ¶ 38.
{¶13} Moreover, evidence obtained by a law enforcement officer acting in
objectively reasonable reliance on a search warrant issued by a detached and neutral
magistrate but ultimately found to be unsupported by probable cause will not be barred
by the application of the exclusionary rule. See George, 45 Ohio St.3d 325, 544 N.E.2d
640 at paragraph three of the syllabus, citing United States v. Leon, 468 U.S. 897, 104
S.Ct. 3405, 82 L.Ed.2d 677 (1984). Finally, an officer executing a valid warrant may seize
an item not described in the warrant if “it was ‘immediately apparent’ that the item was
incriminating.” State v. Waddy, supra 63 Ohio St.3d at 442, 588 N.E.2d 819, citing
Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
See also Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).
{¶14} In the case at bar, the trial court found the search warrant to be insufficient,
however the trial court ruled the officers who executed the warrant acted in “good faith.”
1. The “good faith exception” to the exclusionary rule.
{¶15} The Fourth Amendment provides that, “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.” However, in Leon, the United
States Supreme Court recognized that “the Fourth Amendment exclusionary rule should
not be applied so as to bar the use in the prosecution’s case-in-chief of evidence obtained
Delaware County, Case No. 17 CAA 09 0064 8
by officers acting in objectively reasonable reliance on a search warrant issued by a
detached and neutral magistrate but ultimately found to be unsupported by probable
cause.” George, 45 Ohio St.3d 325, 544 N.E.2d 640 at paragraph three of the syllabus.
In other words, if an affidavit lacks probable cause, an exception to the exclusionary rule
exists where “‘the officer conducting the search acted in objectively reasonable reliance
on a warrant issued by a detached and neutral magistrate.’” United States v. Watson,
498 F.3d 429, 431 (6th Cir.2007), quoting Massachusetts v. Sheppard, 468 U.S. 981,
987–88 (1984). “This is known as the good-faith exception.” United States v. Rose, 714
F.3d 362, 367 (6th Cir.2013). See, State v. Dibble, 10th Dist. Franklin No. 13AP-798,
2014-Ohio-5754, ¶15.
{¶16} The good-faith exception to the exclusionary rule is limited in its application.
George, 45 Ohio St.3d at 331; United States v. Leon, 468 U.S.at 923. The Leon court
cautioned, “[s]uppression remains an appropriate remedy” when the court finds that any
one of the following four circumstances exist:
(1) * * * the magistrate or judge * * * was misled by information in an
affidavit that the affiant knew was false or would have known was false
except for his reckless disregard of the truth * * * “; (2) “ * * * the issuing
magistrate wholly abandoned his judicial role * * * “; (3) an officer purports
to rely upon “ * * * a warrant based on an affidavit ‘so lacking in indicia of
probable cause as to render official belief in its existence entirely
unreasonable ’ “; or (4) “ * * * depending on the circumstances of the
particular case, a warrant may be so facially deficient—i.e., in failing to
Delaware County, Case No. 17 CAA 09 0064 9
particularize the place to be searched or the things to be seized—that the
executing officers cannot reasonably presume it to be valid. * * *
George, 45 Ohio St.3d at 331; Leon, 468 U.S. at 923; Dibble 2014-Ohio-5745, ¶16.
{¶17} In State v. Dibble, the Court observed,
An affidavit lacks the requisite indicia of probable cause if it is a “bare
bones” affidavit. United States v. Laughton, 409 F.3d 744, 748 (6th
Cir.2005), citing Leon at 914–23. The inquiry into whether an affidavit is so
bare bones as to preclude application of the good-faith exception is a less
demanding inquiry than that involved in determining whether an affidavit
provides a substantial basis for the magistrate’s conclusion of probable
cause. Id. at 748, citing Leon at 914–23. The Sixth Circuit has defined a
“bare bones” affidavit as one that states “suspicions, beliefs, or conclusions,
without providing some underlying factual circumstances regarding
veracity, reliability, and basis of knowledge.” Id. at 748–49, citing United
States v. Weaver, 99 F.3d 1372, 1378 (6th Cir.1996).
10th Dist. Franklin No. 13AP-798, 2014-Ohio-5754, ¶17.
{¶18} In the case at bar, the affidavit in support of the search warrant contains an
address and a detailed physical description of the residence to be searched. Further, the
affidavit of Detective Overly states the date of the breaking and entering of the WidePoint
Integrated Systems location, and the number and type of cellular devices that were stolen.
The affidavit indicates that a photograph of the suspects, a male and a female was
obtained by video from an ecoATM in Walmart #3447, located at 3657 East Main Street,
Columbus, Ohio 43213. A driver license photograph from the transaction identified the
Delaware County, Case No. 17 CAA 09 0064 10
female suspect as Wendy R. Lair. The affidavit in support of the warrant indicated that
David Lair was identified by “DCSO Criminal Intelligence Analyst Brook Segaard” as the
male suspect. Thus, the affidavit in the case at bar, was not “bare bones.” Nor did the
affidavit merely posit suspicions, beliefs, or conclusions, without providing some
underlying factual circumstances regarding veracity, reliability, and basis of knowledge.
{¶19} In State v. George, the Ohio Supreme Court observed,
However, even were we to determine that this affidavit did not furnish
the judge with a substantial basis for concluding that there was probable
cause to search the house, we would be compelled nevertheless to uphold
this search based upon the “good faith exception” to the exclusionary rule
set forth in United States v. Leon, supra, and adopted by this court in State
v. Wilmoth (1986), 22 Ohio St.3d 251, 22 OBR 427, 490 N.E.2d 1236.
Unlike the case before us, State v. Wilmoth involved not the issue of
probable cause but defects in the warrant procedure under Crim.R. 41.
However, Leon, supra, held that the Fourth Amendment exclusionary rule
should not be applied so as to bar the use in the prosecution's case-in-chief
of evidence obtained by officers acting in objectively reasonable reliance on
a search warrant issued by a detached and neutral magistrate but ultimately
found to be unsupported by probable cause. Id. at 918–923, 926, 104 S.Ct.
at 3418–3421, 3422.
45 Ohio St.3d 325, 330, 544 N.E.2d 640(1989).
{¶20} Under these circumstances, we find “the officers’ reliance on the [judge’s]
determination of probable cause was objectively reasonable, and application of the
Delaware County, Case No. 17 CAA 09 0064 11
extreme sanction of exclusion … [would be] inappropriate.” United States v. Leon, 468
U.S. 897, 926, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). This is not a case where “the
warrant was based on an affidavit so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923, 104 S.Ct.
3405 (internal quotation marks omitted). It is not unreasonable to believe that the
suspects would store the stolen items in their home, or that other evidence of the crimes
would be found at the residence.
{¶21} We find the execution of the warrant and resulting seizure of contraband
were well within the standards of the “good faith exception” to the exclusionary rule set
forth in United States v. Leon. State v. George, 45 Ohio St.3d at 332, 544 N.E.2d 640.
{¶22} Lair’s sole assignment of error is overruled.
{¶23} The judgment of the Delaware Court of Common Pleas is affirmed.
By Gwin, J.,
Wise, P.J., and
Baldwin, J., concur