State v. Philabaum

[Cite as State v. Philabaum, 2021-Ohio-102.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellant Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 2020 CA 00073
APRIL PHILABAUM

Defendant-Appellee OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 20 CR 1714A

JUDGMENT: Affirmed in Part; Reversed in Part and
Remanded

DATE OF JUDGMENT ENTRY: January 19, 2021

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

JOHN D. FERRERO JACOB T. WILL
PROSECUTING ATTORNEY THE GOTHIC BUILDING
KRISTINE W. BEARD 54 East Mill Street
ASSISTANT PROSECUTOR Suite 400
110 Central Plaza South, Suite 510 Akron, Ohio 44308
Canton, Ohio 44702-1413
Stark County, Case No. 2020 CA 00073 2

Wise, J.

{¶1} Appellant, State of Ohio, appeals the judgment of the Stark County Court of

Common Pleas granting the motion to suppress evidence of Appellee April Philabaum.

The relevant facts leading to this appeal are as follows.

STATEMENT OF THE FACTS AND CASE

{¶2} On August 22, 2019, Detective Dadisman applied for a search warrant

before a Massillon Municipal Court Judge for the residence of Paul Madison, located at

1384 Huron Road SE, Massillon, Ohio. Detective Dadisman alleged he had made three

controlled buys through a confidential informant either at the residence or with Madison,

under the supervision of the Special Investigations Unit. The judge found probable cause

to issue a search warrant for Madison’s residence, the property’s curtilage, the enclosed

front porch, the adjoining apartment complex, safes, and all lock boxes or containers.

{¶3} Prior to executing the search warrant, Massillon Police officers placed the

residence under surveillance. During the surveillance, the officers observed Madison and

Jenna Arthur enter a white Saab and drive away from the residence. At the edge of the

allotment, Detective McConnell initiated a traffic stop. Detective Dadisman arrived shortly

thereafter and assisted. Both Madison and Arthur were asked to step out of the vehicle

and were detained. Dadisman testified he had been told Madison had a gun and

Dadisman assumed he was armed. Dadisman performed a search of the area for officer

safety.

{¶4} Madison and Arthur were read Miranda warnings, and both were patted

down for weapons. Dadisman advised Madison they had a search warrant for his

residence, and they would be detaining him. A vial of cocaine was found on Madison.
Stark County, Case No. 2020 CA 00073 3

{¶5} During the pat down of Arthur, Detective Dadisman asked if she was in

possession of any drugs or weapons. She was combative and did not comply at first. As

Arthur was being escorted back to the police cruiser, Dadisman informed Arthur she

would be further patted down by a female officer. At this point, Arthur stated she would

cooperate and that she had drugs in her possession. Arthur then removed one bag

containing 13 baggies of cocaine from her vagina. The bags contained 39.7 grams of

cocaine. Madison, Arthur’s father, told the officers that the drugs in Arthur’s personal

possession belonged to him.

{¶6} Madison and Arthur were placed under arrest. The Saab was impounded

and inventoried. No drugs were found in the vehicle. Arthur was transported to the

Massillon City Jail. Detective Dadisman placed Madison in an unmarked car and returned

to Madison’s residence to execute a search warrant. Prior to the search, Madison advised

the officers there were drugs in the bedroom he shared with Appellee.

{¶7} When the officers approached the house to execute the search warrant,

Appellee came out of the residence. Dadisman advised Appellee they had a search

warrant for the residence. Officers entered the residence through an unlocked door and

commenced the search. The search warrant was executed at approximately 5:23 P.M.

on August 22, 2019.

{¶8} During the search, officers found cocaine in a bedroom night stand, a small

drawer, and a small safe. They also found drug paraphernalia in Arthur’s bedroom. In

total, 572.86 grams of cocaine were seized from the residence.

{¶9} On October 4, 2019, Appellee was indicted for six felony counts of

Trafficking in and Possession of Cocaine.
Stark County, Case No. 2020 CA 00073 4

{¶10} On November 13, 2019, Arthur filed a motion to unseal the warrant affidavit.

{¶11} On December 4, 2019, Appellee filed a motion to suppress any and all

evidence seized as a result of the execution of the search warrant. Arthur and Madison

joined the suppression motion. Appellee’s only argument was the affidavit supporting the

warrant was insufficient to establish probable cause.

{¶12} At the suppression hearing on December 23, 2019, the defense argued that

the affidavit in support of the warrant was insufficient to establish probable cause for two

reasons. First, the affidavit did not include specific dates of the controlled drug buys.

Second, the affidavit did not identify the confidential informant.

{¶13} Counsel for Madison and Arthur argued that the stop of the vehicle and the

detention and pat down of Madison and Arthur violated the Fourth Amendment because

the search warrant did not include Madison’s vehicle, and no reasonable suspicion of

criminal activity existed to otherwise justify the stop. Madison and Arthur also argued the

officers had no advanced knowledge that the suspects were armed and therefore could

not argue the pat down of Madison and Arthur was for officer safety.

{¶14} After the presentation of evidence, the State filed a response based on the

arguments and the evidence presented at the hearing. The State argued that the affidavit

in support was sufficient, and if the court found otherwise, that in the alternative, the good-

faith exception applied. The State further argued there were reasonable, articulable

suspicions for the stop of Madison’s vehicle, and the stop was valid as being within the

vicinity of the search and as incident to the execution of the search warrant. Finally, the

State argued that the drugs which Arthur consensually handed to the officers were

otherwise admissible.
Stark County, Case No. 2020 CA 00073 5

{¶15} The defendants filed supplemental briefs setting forth as a new argument

that the officers did not have an articulable, reasonable suspicion of criminal activity to

effect the traffic stop of Madison’s vehicle.

{¶16} The trial court granted the defendants’ motion to suppress. In support of the

decision, the trial court found that the affidavit did not contain sufficient facts to support

the inferential conclusion reached by Detective Dadisman or to enable the issuing court

to conduct an independent review of his conclusions. The trial court further held the

affidavit, which did not provide underlying facts regarding the veracity, reliability and basis

for Detective Dadisman’s suspicions, beliefs, and conclusions. The trial court also

determined that the search warrant was facially deficient such that Detective Dadisman

could not presume its validity. Therefore, the good-faith exception did not apply.

{¶17} The trial court finally held that the search warrant did not include the

authority to stop Madison’s vehicle, and that the officer’s testimony did not support the

conclusion that the officer had a reasonable, articulable suspicion that the occupants of

the vehicle were engaged in criminal activity. The trial court did not specifically address

the State’s argument that even if the affidavit in support was insufficient, the evidence

was otherwise admissible.

ASSIGNMENTS OF ERROR

{¶18} On April 6, 2020, Appellant filed a notice of appeal and herein raises the

following six Assignments of Error:

{¶19} “I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

GRANTING THE APPELLEE’S MOTION TO SUPPRESS ON NEW GROUNDS.
Stark County, Case No. 2020 CA 00073 6

{¶20} “II. THE TRIAL [sic] ABUSED ITS DISCRETION IN FINDING THAT THE

AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT FOR MADISON’S RESIDENCE

USURPED THE JUDGE’S INFERENCE-DRAWING AUTHORITY.

{¶21} “III. THE TRIAL [sic] ABUSED ITS DISCRETION IN GRANTING THE

MOTION TO SUPPRESS FINDING THAT THE AFFIDAVIT IN SUPPORT WAS

INSUFFICIENT FOR THE REVIEWING COURT TO REASONABLY INFER THAT

ILLEGAL NARCOTICS AND EVIDENCE OF DRUG TRAFFICKING WOULD BE FOUND

IN MADISON’S RESIDENCE.

{¶22} “IV. THE TRIAL COURT ERRED IN FINDING THAT THE EVIDENCE

SHOULD BE SUPPRESSED BECAUSE THERE WAS NO REASONABLE

JUSTIFICATION FOR THE TRAFFIC STOP.

{¶23} “V. THE TRIAL COURT ERRED IN FAILING TO FIND IN THE

ALTERNATIVE THAT THE GOOD FAITH EXCEPTION TO THE WARRANT

REQUIREMENT APPLIED IN THIS CASE.

{¶24} “VI. THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE

COCAINE HIDDEN ON ARTHUR’S PERSON WAS OTHERWISE ADMISSIBLE.”

Standard of Review

{¶25} The Fourth Amendment to the United States Constitution and Section 14,

Article I, Ohio Constitution, prohibit the government from conducting unreasonable

searches and seizures of persons or their property. See Terry v. Ohio (1968), 392 U.S.

1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565

N.E.2d 1271.
Stark County, Case No. 2020 CA 00073 7

{¶26} Appellate review of a motion to suppress is a mixed question of law and

fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶8. The trial

court is the finder of fact in evaluating a motion to suppress; therefore, it is in the best

position to resolve factual questions and evaluate the credibility of witnesses. Id. The trial

court’s findings of fact must be accepted by an appellate court if they are supported by

competent, credible evidence. Id. “Accepting facts as true, the appellate court must then

independently determine, without deference to the conclusion of the trial court, whether

the facts satisfy the applicable legal standard.” Id. That is, the appellate court will review

the application of the legal standard to the facts de novo. Id.

{¶27} There are three methods of challenging a trial court’s ruling on a motion to

suppress on appeal. State v. Goins, 5th Dist. Morgan No. 05-8, 2006-Ohio-74, ¶10. First,

an appellant may challenge the trial court’s finding of fact. Id. Second, an appellant may

argue the trial court failed to apply the appropriate test or correct law to the findings of

fact. Id. Finally, an appellant may argue the trial court has incorrectly decided the ultimate

or final issue raised in the motion to suppress. Id. When reviewing this type of claim, an

appellate court must independently determine, without deference to the trial court's

conclusion, whether the facts meet the appropriate legal standard in any given

case. State v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994).
Stark County, Case No. 2020 CA 00073 8

I.

{¶28} In Appellant’s First Assignment of Error, Appellant argues the trial court

committed reversible error by granting Appellee’s Motion to Suppress on grounds not

presented by the Appellee. We disagree.

{¶29} A motion to suppress evidence must make clear the grounds upon which

the motion is based in order that the prosecutor may prepare his case and the court may

know the grounds of the challenge in order to rule on evidentiary issues at the hearing

and properly dispose of the merits. Xenia v. Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d

889 (1988). Crim.R. 47 specifies that a motion to the trial court “shall state with

particularity the grounds upon which it is made and shall set forth the relief or order

sought.” “The Supreme Court [of Ohio] has stated that ‘this provision, in the context of the

ruling case law and when applied to a motion to suppress evidence obtained by search

and seizure, requires that the prosecution be given notice of the specific legal and factual

grounds upon which the validity of the search and seizure is challenged.’ ” State v. Byrnes,

2nd dist. Montgomery No. 25860, 2014-Ohio-1274, ¶10, quoting Dayton v. Dabney, 99

Ohio App.3d 32, 37, 649 N.E.2d 1271 (2d Dist.1994), quoting Wallace at 219.

{¶30} However, a trial court may expand the scope of a suppression hearing

beyond the issues specified by the defendant’s motion to suppress “so long as the matters

within the expanded scope were material to the suppression sought, and so long as the

State had a reasonable opportunity to prepare itself for the hearing.” Byrnes at ¶12.

{¶31} If a trial court grants a motion to suppress based on an issue outside the

expanded scope of the motion, the state may not have been given the opportunity to

adequately prepare arguments and present evidence on that issue, and the trial court
Stark County, Case No. 2020 CA 00073 9

would err in granting the motion to suppress on that basis. State v. Skeens, 5th Dist.

Tuscarawas No. 2017 AP 11 0030, 2018-Ohio-1610, ¶16. Therefore, the question is

whether the prosecutor had notice of the issue and was given an opportunity to prepare

and present arguments on the issue. Id.

{¶32} In Dabney, the court concluded that the trial court interjected “a new issue

which was not supported by any evidence whatsoever, and basing its decision to

suppress the evidence on th[at] issue * * * was prejudicial error to the city.” Dabney at 39.

{¶33} In this case, Appellee’s, Madison’s, and Arthur’s collective suppression

motions were based on the inadequacy of the underlying affidavit to establish probable

cause, and a lack of a good faith exception. Appellant argues that none of the defendants

argued in their joint motions to suppress and/or at the hearing that the affidavit in support

of the search warrant usurped the judge’s inference-drawing authority. While the trial

court does discuss the search warrant usurping the judge’s inference-drawing authority,

this is because, and the trial court stated, the search warrant lacked sufficient facts to

support affiant’s conclusions and findings of probable cause. Therefore, we find the state

had a reasonable opportunity to prepare and present arguments on the issue of the

sufficiency of the facts presented in the affidavit to establish probable cause.

{¶34} Appellant’s First Assignment of Error is overruled.

II.

{¶35} In Appellant’s Second Assignment of Error, Appellant argues the trial court

abused its discretion in finding that the affidavit in support of the search warrant for

Madison’s residence usurped the judge’s inference-drawing authority. We disagree.
Stark County, Case No. 2020 CA 00073 10

{¶36} Affidavits that include a factual narrative will inevitably include a number of

inferences drawn by the affiant. State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565,

46 N.E.3d 638, ¶40. The facts upon which those inferences are based must be disclosed

in the affidavit to permit a magistrate’s independent review. Id. The reviewing court must

determine whether the inference was “ ‘so significant as to cross the line between

permissible interpretation and usurpation’, considering the relevance and the complexity

of the undisclosed inference.” Id. at ¶56.

{¶37} Next, the reviewing court must consider the affiant’s animus. If the affiant

negligently usurped the magistrate’s inference drawing authority, then the reviewing court

must “excise the inference, insert the omitted underlying facts, and reassess the affidavit

for probable cause.” Id.

{¶38} The affidavit states, “[t]he Detective has prior knowledge in the past few

months of drug activity taking place at the listed residence and from the residence.”

State’s Exhibit 2. In support of this inference the affiant states, “[a] Confidential informant,

along with the controlled monitoring of The Special Investigation Unit, has made three

controlled buys from the residence and or the defendant.” Id. However, it does not discuss

the procedure followed for the controlled buys, the detail on whether each buy was made

with Madison, at his residence, or some combination, and does not even disclose dates

for the first two buys. We are left with very few facts, just that one “controlled buy” took

place either at the residence of Madison or with Madison himself on August 22, 2019, and

two controlled buys took place at some point in time before August 22, 2019. Finally, the

affidavit makes one final inference, “[d]etectives gained the knowledge that PAUL J.

MADISON is using this home to sell and or maintain drugs directly from the residence.”
Stark County, Case No. 2020 CA 00073 11

Id. In order for a magistrate to review this inference, the underlying facts must be

disclosed.

{¶39} Next, we consider the animus of the affiant. Nothing in the record indicates

the lack of factual statements would suggest malfeasance. As such we do not find that

the detective intentionally usurped the magistrate’s inference-drawing authority.

Removing the inferences made in the search warrant, we are left with the factual

statements disclosing three incidents the affiant has labeled as “controlled buys” took

place on or before August 22, 2019. These buys took place either with Madison and or at

Madison’s residence. There are no underlying facts in the record as to activities consisting

of the controlled buy, the dates or time period of the first two controlled buys, and where

or with whom each of these controlled buys took place. As such we find, based on the

totality of the circumstances, that the trial court did not err in finding that the affidavit in

support of the search warrant for Madison’s residence usurped the judge’s inference-

drawing authority.

{¶40} Appellant’s Second Assignment of Error is overruled.

III.

{¶41} In Appellant’s Third Assignment of Error, Appellant argues the trial court

abused its discretion in granting the motion to suppress evidence obtained from

Madison’s residence because the affidavit was insufficient for the reviewing court to

reasonably infer that illegal narcotics and evidence of drug trafficking would be found at

Madison’s residence. We disagree.

{¶42} In the case sub judice, Appellant’s challenge of the trial court’s ruling on

Appellee’s motion to suppress is based on the third method. Accordingly, this Court must
Stark County, Case No. 2020 CA 00073 12

independently determine, without deference to the trial court’s conclusion, whether the

facts meet the appropriate legal standard in this case. More specifically, Appellant is

challenging the trial court’s conclusion that the search warrant issued for Appellee’s

residence was not supported by probable cause.

{¶43} Trial courts 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.” State v. George, 45 Ohio St.3d 325,

330, 554 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). The reviewing court is to ensure

the magistrate had a substantial basis for concluding that probable cause existed. Id.

{¶44} “[A]n affidavit for a search warrant must present timely information.” State

v. Jones (1991), 72 Ohio App.3d 522, 526, 595 N.E.2d 485,488. The facts contained in

the affidavit must be so closely related to the time of the issue of the warrant as to justify

the issuing court’s finding of probable cause. Id. In order “to determine if the information

is stale, the issuing court must consider whether there is a nexus between the alleged

crime, the object to be seized, and the place to be searched.” Castagnola at ¶34. Mere

conclusory statements made by the affiant in a search warrant affidavit about the nature

of the contraband are themselves insufficient to justify the issuance of a search warrant.

State v. Hollis, 98 Ohio App.3d 549, 555, 649 N.E.2d 11, 15 (11th Dist. 1994).

{¶45} In State v. Stubbs, 5th Dist. Coshocton No. 2019CA0020, 2020-Ohio-3464,

¶28, the affidavit clearly detailed the activities and circumstances comprising the

controlled buy. “The affidavit stated the informants and their car were searched before

the controlled buy and no contraband was found.” Id. From these facts it can be inferred
Stark County, Case No. 2020 CA 00073 13

the controlled substance did not originate with the defendants. Id. Facts like these

establish a nexus between a defendant’s crimes and the objects to be seized. Id.

{¶46} In the case sub judice, Detective Dadisman’s affidavit indicated an active

drug investigation of Madison that a confidential informant has made three controlled buys

of cocaine from Madison and/or Madison’s residence. The most recent taking place on

August 22, 2019. The affidavit mostly contained conclusions and very few factual

statements. The affiant did state that three “controlled buys” took place, the final one

happening on August 22, 2019, four days before the execution of the search warrant. The

affidavit did not provide dates for the first two controlled buys. There is no description of

the activities constituting the controlled buys from which an inference may be drawn to

establish a nexus between a defendant’s crimes and the objects to be seized. Therefore,

applying the principles noted above and granting due deference to the issuing judge’s

determination, we find no error in the trial court’s determination that the affidavit in support

of the search warrant was insufficient for the reviewing court to reasonably infer that illegal

narcotics and evidence of drug trafficking would be found in Madison’s residence.

{¶47} Appellant’s Third Assignment of Error is overruled.

IV.

{¶48} In Appellant’s Fourth Assignment of Error, Appellant argues the trial court

erred in finding that the evidence should be suppressed because there was no reasonable

justification for the traffic stop. We disagree.

{¶49} In the case sub judice, Appellant argues there were two justifications for the

stop of Madison and Arthur. The first was that the stop was permissible incident to the
Stark County, Case No. 2020 CA 00073 14

execution of the search warrant. The second was that reasonable suspicion existed that

Madison and Arthur were engaging in criminal activity.

a. Whether the stop of Madison and Arthur was permissible
incident to the execution of the search warrant

{¶50} Appellant argues the trial court erred in granting Appellee’s motion to

suppress evidence obtained when police initiated a traffic stop detaining Madison and

Arthur.

{¶51} The United State Supreme court held, incident to the execution of a search

warrant on a house, police officers were justified in detaining a person descending the

front steps of the house as they arrived to execute the warrant. Michigan v. Summers,

452 U.S. 692, 693, 705-6, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). However, in Bailey v.

United States, 568 U.S. 186, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013), the United States

Supreme Court held that a warrant to search a house did not justify stopping a car that

left the house shortly before the execution of the warrant. The Supreme Court explained,

“Summers recognized that a rule permitting the detention of occupants on the premises

during the execution of a search warrant, even absent individualized suspicion, was

reasonable and necessary in light of the law enforcement interests in conducting a safe

and efficient search.” Id. This is to ensure that persons at the scene of the search are not

disruptive, dangerous, or destructive during the search. Id. These concerns are not

present when the person detained has already left the property when the search begins.

Id. Therefore, the Supreme Court held, “[t]he categorical authority to detain incident to the

execution of a search warrant must be limited to the immediate vicinity of the premises to

be searched.” Id.
Stark County, Case No. 2020 CA 00073 15

{¶52} In Bailey, the police watched the defendant leaving the premises enter a

car, and drive away from the property. Id. After following the car for approximately five

minutes, or about a mile, officers pulled the vehicle over. Id. The Supreme Court

determined Bailey was “detained at a point beyond any reasonable understanding of the

immediate vicinity of the premises in question.” Id.

{¶53} In this case, the search warrant itself did not include Madison’s vehicle as

an area to be searched. Upon arrival at the property to be searched, the officers observed

Madison and Arthur enter a vehicle and drive away. The officers followed the vehicle,

initiating a traffic stop at the end of the housing allotment approximately four blocks away.

Officers detained both Madison and Arthur. There is no reason in the record to support

an inference that he would or could interfere with the warranted search. There was no

basis to detain him incident to the execution of the warrant because his circumstances

were not within the limits prescribed by Bailey. Therefore, we agree with the trial court’s

finding that the vehicle was not in the immediate vicinity of the place to be searched and

therefore was not a permissible incident to the execution of the warrant.

b. Whether the stop of Madison and Arthur was justified by reasonable
suspicion that he was committing or about to commit an offense.

{¶54} “[A]n investigative stop does not violate the Fourth Amendment to the

United States Constitution if the police have reasonable suspicion that ‘the person

stopped is, or is about to be, engaged in criminal activity.’ ” State v. Jordan, 104 Ohio

St.3d 21, 2004-Ohio-6085, ¶35, 817 N.E.2d 864, quoting United States v. Cortez (1981),

449 U.S. 411, 101 S.Ct. 690, 695, 66 L.Ed.2d 621.

{¶55} Reasonable suspicion entails some minimal level of objective justification,

“that is, something more than an inchoate and unparticularized suspicion or ‘hunch,’ but
Stark County, Case No. 2020 CA 00073 16

less than the level of suspicion required for probable cause.” State v. Jones (1990), 70

Ohio App.3d 554, 556-57, 591 N.E.2d 810, 811 (2nd Dist. 1990), citing Terry v. Ohio, 392

U.S. 1, 27 (1968).

{¶56} An investigatory stop “must be viewed in the light of the totality of the

circumstances” presented to the police officer, “who must react to events as they unfold.”

State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980), paragraph one of the

syllabus; State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991). The officer,

“must be able to point to specific and articulable facts which, taken together with rational

inferences from those facts reasonably warrant that intrusion” Terry, supra at 21, but the

officer need not provide proof beyond a reasonable doubt that the defendant’s conduct

has satisfied the elements of the offense. State v. Willis, 5th Dist. Licking No. 14 CA 103,

2015-Ohio-3739, ¶25.

{¶57} Detective Dadisman testified at the suppression hearing that he made the

call to initiate the traffic stop on Madison and Arthur. He testified that he initiated the traffic

stop because the vehicle was far enough away from the residence as not to alert anyone

in the residence for the safety of the officers. He also testified there was no other reason

for the traffic stop. Specifically, he noted that he did not observe any traffic violations, nor

was there any indication that Arthur or Madison were engaging in drug activity at the time

of the traffic stop.

{¶58} The trial court granted the motion to suppress the evidence obtained from

the traffic stop, finding “the officer admitted that the sole basis of the stop was his belief

that the vehicle was within the scope of the search warrant.” The trial court also found,
Stark County, Case No. 2020 CA 00073 17

“the vehicle stopped nearly a mile from the residence to be searched was not in the

immediate vicinity of the place to be searched or within the scope of the warrant.”

{¶59} In considering the totality of the circumstances, we cannot say the trial court

erred in finding the traffic stop was not supported by reasonable suspicion of criminal

activity.

{¶60} Upon review, we find the trial court did not err in granting Appellee’s motion

to suppress.

{¶61} Appellant’s Fourth Assignment of Error is overruled.

V.

{¶62} In Appellant’s Fifth Assignment of Error, Appellant argues the trial court

erred by failing to find that the good faith exception to the warrant requirement applied in

this case. We agree.

{¶63} 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 George, the Supreme

Court of Ohio 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 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 (1989). 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
Stark County, Case No. 2020 CA 00073 18

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.

{¶64} The good-faith exception to the exclusionary rule is limited in its application.

George, 45 Ohio St.3d at 331; United State v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405,

3421, 82 L.Ed.2d 677 (1984). 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 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-5754, ¶16.

{¶65} 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.
Stark County, Case No. 2020 CA 00073 19

2005), citing Leon at 914-923. 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. Laughton at 748, citing Leon at 914-23. The Sixth Circuit has defined

“bare bones” affidavit as one that states “suspicions, beliefs, or conclusions,

without providing some underlying factual circumstances regarding

veracity, reliability, and basis of knowledge.” Laughton at 748-49, citing

United States v. Weaver, 99 F.3d 1372, 1378(6th Cir.1996).

10th

{¶66} In the case sub judice, the affidavit in support of the search warrant contains

an address and detailed description of the residence to be searched. Further, the affidavit

of Detective Dadisman states the date of the third controlled buy, and that all three

controlled buys either took place at the residence and/or with Madison. As such, the

affidavit was more than just “bare bones.” The affidavit did not merely contain suspicions,

beliefs, or conclusions, without providing some underlying factual circumstances

regarding veracity, reliability, and basis of knowledge.

{¶67} We find the execution of the warrant and resulting seizure of contraband

were within the standards of the “good-faith exception” to the exclusionary rule.

{¶68} The Appellant’s Fifth Assignment of Error is granted.
Stark County, Case No. 2020 CA 00073 20

VI.

{¶69} In Appellant’s Sixth Assignment of Error, the State argues the legality of the

traffic stop was irrelevant since Arthur voluntarily handed the drugs over to the officers

during the traffic stop making the drugs otherwise admissible evidence. We disagree.

{¶70} Searches and seizures conducted without a warrant, without probable

cause, and not incident to lawful arrest, violate the Fourth Amendment to the United

States Constitution, and all fruits thereof are subject to suppression. Mapp v. Ohio (1961),

367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Wong Sun v. United States (1963), 371

U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. “The exclusionary rule has traditionally barred

from trial physical, tangible materials obtained either during or as a direct result of an

unlawful invasion.” Wong Sun at 485.

{¶71} It is well established a defendant waives his or her Fourth Amendment

protection by consenting to a warrantless search. State v. Barnes, 25 Ohio St.3d 203,

208, 495 N.E.2d 922 (1986), citing Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256,

90 L.Ed. 1453 (1946), Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.

854 (1973). “The standard of proof to show a waiver of Fourth Amendment rights is less

strict than that required to demonstrate a waiver of Fifth or Sixth Amendment rights. It

need not be shown that there has been a knowing and intelligent waiver. Rather, the court

must examine the totality of the circumstances to determine the voluntariness of consent.”

Barnes, supra at 208-209, citing Schneckloth, supra and United States v. Mendenhal,

446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

{¶72} “Voluntary consent, determined under the totality of the circumstances, may

validate an otherwise illegal detention and search.” State v. Robinette, 80 Ohio St.3d 234,
Stark County, Case No. 2020 CA 00073 21

241, 1997-Ohio-343, 685 N.E.2d 762, citing Davis v. United States, supra at 593-594.

Important factors to consider when determining the voluntariness of consent are: (1)

voluntariness of the defendant’s custodial status; (2) presence of coercive police

procedures; (3) extent and level of defendant’s cooperation with police; (4) defendant’s

awareness of her right to refuse to consent; (5) defendant’s education and intelligence;

and (6) defendant’s belief that no incriminating evidence will be found. State v. Moscoso,

5th Dist. Muskingum No. CT2018-0012, 2018-Ohio-2877, ¶25, citing State v. Webb, 2nd

Dist. No. 17676, 2000 WL 84658 unreported (Jan. 28, 2000).

{¶73} “Whether a consent to search was voluntary or was the product of duress

or coercion, either express or implied is a question of fact to be determined from the

totality of the circumstances.” State v. Carothers, 5th Dist. Tuscarawas No. 2015 AP 04

0017, 2015-Ohio-4569, 47 N.E.3d 483, ¶30, citing State v. Lett, 11th Dist. No. 2008-T-

0116, 2009-Ohio-2796, ¶32, citing Schneckloth at 248-249. Thus this determination is

best left to the trier of fact, and will only be reversed upon a showing that it is not supported

by competent, credible evidence. Carothers at ¶30.

{¶74} In State v. Clark, 5th Dist. Ashland No. 15-COA-040, 2016-Ohio-4614, the

defendant was pulled over. After an initial search of the vehicle, officers determined the

glove box was locked. The officer then approached the defendant and asked for the key

to the glove box. Id. The defendant provided the officer the key. Id. The officer found a

firearm in the glove box. Id. This Court stated that the officer approaching the defendant

“with an outstretched hand and asking for the keys” was done so “under the color and

authority of his badge and uniform.” Id. This Court further held the “mere relinquishment

of the keys by appellant” is not sufficient to establish voluntary consent. Id.
Stark County, Case No. 2020 CA 00073 22

{¶75} In the case sub judice, Appellant has conceded Arthur was in custody and

advised of her Miranda rights. Detective Dadisman asked Arthur if she was in possession

of any drugs or weapons; Arthur did not reply. Detective Dadisman took custody of Arthur,

conducted a pat down for officer safety, and did not discover anything. The detective then

took Arthur to the police cruiser, where Arthur was advised a female officer would be

doing a more thorough pat down of her. At this point Arthur said she would cooperate and

presented the officers with the drugs she was hiding.

{¶76} Only after an illegal traffic stop, detention, being subject to one pat down,

an arrest, and the threat of a more invasive search did Arthur turn over the drugs which

were concealed on her person. Given these facts, the trial court’s determination that the

consent was not voluntary is supported by competent, credible evidence.

{¶77} We find the trial court did not abuse its discretion in excluding the evidence

found on Arthur as “fruits of the poisonous tree” of the unlawful traffic stop as the finding

was supported by competent, credible evidence.

{¶78} Appellant’s Sixth Assignment of Error is overruled.
Stark County, Case No. 2020 CA 00073 23

{¶79} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed in part and reversed in part. This matter is remanded for

further proceedings consistent with this opinion .

By: Wise, J.

Gwin, P. J., concurs.

Hoffman, J., concurs separately.

JWW/br 0105
Stark County, Case No. 2020 CA 00073 24

Hoffman, P.J., concurring

{¶80} I concur in the majority’s analysis and disposition of Appellant’s first, fourth,

fifth, and sixth assignments of error.

{¶81} I disagree with the majority’s analysis and disposition of Appellant’s

second and third assignments of error. However, such disagreement does not affect my

agreement with the majority’s ultimate disposition of the appeal based on the application

of the “good faith” exception.