[Cite as State v. Coleman,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 25248

v. : T.C. NO. 10CR3660/1

MARVIN COLEMAN : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 21st day of December , 2012.

..........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 2661 Commons Blvd., Suite 214, Beavercreek, Ohio 45431 Attorney for Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} Defendant-appellant Marvin Coleman appeals a judgment of the 2

Montgomery County Court of Common Pleas, General Division, overruling his motion to

suppress filed on June 7, 2011. A hearing was held before the trial court on said motion on

March 13, 2012. The trial court issued its decision overruling Coleman’s motion to

suppress on April 3, 2012. Coleman filed a timely notice of appeal with this Court on June

18, 2012.

{¶ 2} The incident which forms the basis of the instant appeal occurred on August

17, 2010, when Detective Diane Taylor of the Montgomery County Sheriff’s Office received

an anonymous Crime Stoppers tip regarding the existence of a marijuana grow operation in

the basement of a residence located at 232 Turner Road in Harrison Township, Ohio. Upon

receiving the tip, Det. Taylor accessed a Montgomery County real estate website which

indicated the residence located at 232 Turner Road did, in fact, have a basement. In light of

this information, Det. Taylor executed an affidavit which she presented to a Dayton

Municipal Court judge requesting that a court order be issued compelling Dayton Power and

Light (DP&L) to produce records regarding the electricity usage of the current resident at

232 Turner Road. The judge signed the order, and Det. Taylor served the court order on

DP&L headquarters, which is located in the City of Dayton. The records established that

the electricity usage at the 232 Turner Road residence was presently almost triple the amount

it had been a “year or two ago” during the same season of the year. The records also

demonstrated that the electricity usage at the subject residence was high in comparison to a

similar residence of the same size.

{¶ 3} On August 25, 2010, Det. Taylor applied for a search warrant to deploy the

use of a thermal image scanner at the 232 Turner Road residence. A thermal image scanner 3

is used to detect and analyze heat levels being emitted from a residence or other structure.

Det. Taylor obtained the search warrant for the use of the thermal image scanner from a

judge in the Vandalia Municipal Court, which has jurisdiction over Harrison Township.

After securing the warrant, Det. Taylor, accompanied by two police officers and Harrison

Township firefighter Tony Davis, entered upon the property (not the residence) at 232

Turner Road and scanned the house using the thermal imaging device. Det. Taylor testified

that the thermal imager recorded heat coming from the basement of the residence.

Additionally, Det. Taylor testified that while on the property, she and the other officers

smelled the strong scent of raw marijuana emanating from an air conditioning vent near the

bottom of the house.

{¶ 4} Based on the information gathered during the execution of the first warrant,

Det. Taylor applied for a second warrant to search the residence located at 232 Turner Road

for evidence regarding the cultivation and possession of marijuana. Several officers and

detectives had remained at the residence while Det. Taylor left to secure the second warrant.

The search warrant was issued by the same Vandalia Municipal Court judge who had issued

the first warrant. Upon returning to the residence in order to execute the warrant, Det.

Taylor observed that Coleman was already outside the residence and had been placed in the

rear of a police cruiser. Det. Taylor testified that she was unsure if Coleman was initially

provided with a copy of the search warrant, but she testified that she informed him of the

existence of the warrant to search the residence. The police then executed the warrant,

searched the residence, and discovered evidence of drug activity, to wit: a marijuana grow

operation. [Cite as State v. Coleman,

.] {¶ 5} After completing the search and inventory of the residence, which took

approximately three to four hours to complete, Det. Taylor went to the county jail in order to

interview Coleman. Det. Taylor testified that she introduced herself to Coleman and

obtained information from him regarding his employment and whether he was married.

Det. Taylor further testified that just as she was attempting to inform Coleman of his

Miranda rights, he stated that his wife did not live at the 232 Turner Road residence with

him. Coleman also stated that the marijuana found at the residence was for personal use

because they both liked to smoke marijuana. At this point, Det. Taylor finished reading

Coleman his Miranda rights. Coleman invoked his right to counsel, and Det. Taylor

concluded the interview.

{¶ 6} On February 8, 2011, Coleman was indicted for one count of illegal

cultivation of marijuana (in an amount equal to or exceeding 5,000 grams but less than

20,000 grams), a felony of the third degree, with a one-year firearm specification attached;

possession of marijuana (in an amount equal to or exceeding 5,000 grams but less than

20,000 grams), a felony of the third degree, with a one-year firearm specification attached;

possession of cocaine (in an amount equal to or exceeding twenty-five grams but less than

100 grams), a felony of the third degree, with a one-year firearm specification attached;

possession of hashish, a felony of the fifth degree, with a one-year firearm specification

attached; possession of criminal tools, a felony of the fifth degree; and possession of drug

paraphernalia, a misdemeanor of the fourth degree.

{¶ 7} As previously stated, Coleman filed a motion to suppress on June 7, 2011,

which the trial court subsequently overruled. On April 26, 2012, Coleman pled no contest

to illegal cultivation of marijuana (in an amount equal to or exceeding 5,000 grams but less 5

than 20,000 grams). The State dismissed the remaining counts in the indictment and the

firearm specifications. The trial court subsequently sentenced Coleman to a prison term of

eighteen months, but stayed imposition of the sentence pending the outcome of the appeal.

{¶ 8} It is from this judgment that Coleman now appeals.

{¶ 9} Coleman’s first assignment of error is as follows:

{¶ 10} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

DENYING APPELLANT’S MOTION TO SUPPRESS EVIDENCE BY FINDING THE

COURT ORDER FOR RECORDS WAS A PROPER EXECUTION OF JUDICIAL

AUTHORITY.”

{¶ 11} In his first assignment, Coleman contends that the Dayton Municipal Court

judge did not have jurisdiction to issue a court order to compel DP&L to release the

electrical usage information for the residence located at 232 Turner Road in Harrison

Township.

{¶ 12} In regards to a motion to suppress, “the trial court assumes the role of trier of

facts and is in the best position to resolve questions of fact and evaluate the credibility of

witnesses.” State v. Hopfer,

,

(2d Dist. 1996),

quoting State v. Venham,

,

(4th Dist. 1994). The

court of appeals must accept the trial court’s findings of fact if they are supported by

competent, credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No. 20662,

, citing State v. Retherford,

,

(2d

Dist. 1994). Accepting those facts as true, the appellate court must then determine, as a

matter of law and without deference to the trial court’s legal conclusion, whether the 6

applicable legal standard is satisfied.

{¶ 13} R.C. 1901.02(A) states in pertinent part:

{¶ 14} “The municipal courts established by section 1901.01 of the Revised Code

have jurisdiction within the corporate limits of their respective municipal corporations ***.”

{¶ 15} R.C. 1901.03 defines a “territory” as “the geographical areas within which

municipal courts have jurisdiction.” Specifically, Coleman argues that the Dayton Municipal

Court judge did not have jurisdiction to sign the court order for Det. Taylor to obtain the

DP&L records for a residence located in Harrison Township which is outside the “territory”

in which it is permitted to adjudicate. It is undisputed that Harrison Township is within the

jurisdiction of the Vandalia Municipal Court. Coleman also points out that Det. Taylor’s

affidavit in support of her court order did not include the information that DP&L’s

headquarters is located in the City of Dayton.

{¶ 16} In her affidavit in support of her court order, Det. Taylor submitted the

following information, in pertinent part:

{¶ 17} “On August 17, 2010, Miami Valley Crime Stoppers received a drug

complaint through Tipsoft (an anonymous narcotic tip line). The complainant stated that

subjects living at 232 Turner Road in Dayton, Ohio are growing a large crop of marijuana in

the basement of their home. ***

{¶ 18} “The Affiant is requesting subscriber information from [DP&L] and electric

usage from 232 Turner Road, from the time the current subscriber moved in until present.”

(Emphasis added).

{¶ 19} We note that although the affidavit states that the residence is located in 7

Dayton, Ohio, both parties acknowledge that 232 Turner Road is in Harrison Township. At

the suppression hearing, Det. Taylor testified that the residence was in the jurisdiction of the

Vandalia Municipal Court. The court order, however, was directed to DP&L, not the

residence or its occupants located at 232 Turner Road in Harrison Township. Significantly,

Det. Taylor testified that she went to the Dayton Municipal Court to obtain the court order

for the electricity usage records because the records were located at DP&L headquarters,

which is situated in the City of Dayton. It is undisputed that the Dayton Municipal Court’s

territorial jurisdiction extends to records which are maintained in the City of Dayton. The

fact that Det. Taylor mistakenly forgot to include the Dayton, Ohio address of DP&L’s

headquarters is not fatal to her affidavit in support of the court order. Furthermore, the

affidavit mistakenly averred that the 232 Turner Road address was in the City of Dayton,

which would have led the trial court in good faith to believe it could invoke its felony

jurisdiction under R.C. 1901.20(B), which states as follows:

{¶ 20} “(B) The municipal court has jurisdiction to hear felony cases committed

within its territory. In all felony cases, the court may conduct preliminary hearings and

other necessary hearings prior to the indictment of the defendant or prior to the court’s

finding that there is probable and reasonable cause to hold or recognize the defendant to

appear before a court of common pleas, and may discharge, recognize, or commit the

defendant.”1 (Emphasis added).

1 Although we disagree with Coleman’s characterization of the order to DP&L as a search warrant, we note that the trial court would have had authority under Crim. R. 41(A) to issue a search warrant independently of R.C. 1901.20(B). [Cite as State v. Coleman,

.] {¶ 21} Thus, the trial court did not err when it granted the court order directing

DP&L to turn over the electricity usage records for the residence in question.

{¶ 22} Coleman also argues that based on the information contained in Det.

Taylor’s affidavit, the Dayton Municipal Court lacked probable cause to grant the court

order for the DP&L electricity usage records for 232 Turner Road. Initially, we note that

the State argues that Coleman failed to raise this issue in his motion to suppress before the

trial court. Upon review, we find that Coleman did, in fact, assert that the court order was

not supported by probable cause. Coleman, however, referred to the court order as a search

warrant.

{¶ 23} “The touchstone of Fourth Amendment analysis is whether a person has a

constitutionally protected reasonable expectation of privacy.” California v. Ciraolo,

,

,

(1986). The Supreme Court “has held

repeatedly that the Fourth Amendment does not prohibit the obtaining of information

revealed to a third party and conveyed by him to Government authorities, even if the

information is revealed on the assumption that it will be used only for a limited purpose and

the confidence placed in the third party will not be betrayed.” United States v. Miller,

,

,

(1976) (holding that a bank depositor has no

legitimate expectation of privacy in copies of checks and deposit slips retained by his bank);

Smith v. Maryland,

,

,

(1979) (holding that

“[w]hen [defendant] used his phone, [he] voluntarily conveyed numerical information to the

telephone company and ‘exposed’ that information to its equipment in the ordinary course of

business”).

{¶ 24} In U.S. v. McIntyre,

(8th Cir. 2011), the court held that the 9

defendant did not have a reasonable expectation of privacy protected by the Fourth

Amendment in electricity usage records for his residence, which police obtained serving a

county attorney subpoena on the electric utility. Specifically, the court found that when the

defendant used power in his home, he voluntarily conveyed that information to the electric

utility supplying his power.

As a result, the court held that he had no reasonable

expectation of privacy in his power records, meaning that law enforcement officer did not

need probable cause to obtain the records.

{¶ 25} Similar to the defendant in McIntyre, when Coleman used electricity at the

232 Turner Road residence, he voluntarily conveyed that information to DP&L. Thus,

Coleman had no reasonable expectation of privacy in the records of his electricity usage.

Therefore, Det. Taylor did not need probable cause in order to obtain the records, and the

municipal court did not err when it granted the court order directing DP&L to turn over the

electricity usage records.

{¶ 26} Coleman’s first assignment of error is overruled.

{¶ 27} Coleman’s second assignment of error is as follows:

{¶ 28} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

DENYING APPELLANT’S MOTION TO SUPPRESS BY FINDING THAT THE

SEARCH WARRANT FOR THERMAL IMAGING WAS SUPPORTED BY PROBABLE

CAUSE.”

{¶ 29} In his second assignment, Coleman argues that the trial court erred by

finding that the first search warrant for thermal imaging at the 232 Turner Road residence

was supported by probable cause. Specifically, Coleman asserts that the DP&L records 10

were tainted information because the Dayton Municipal Court was without jurisdiction to

grant the court order.

{¶ 30} “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, 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,

,

(1989),

paragraph one of the syllabus, following and quoting Illinois v. Gates,

,

,

(1983).

{¶ 31} “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 nor 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

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.”

at paragraph two of the syllabus (citation

omitted).

{¶ 32} We have already determined that the Dayton Municipal Court possessed the 11

requisite jurisdiction to grant the court order permitting Det. Taylor to obtain the electricity

usage records for the residence in question. Based on the anonymous tip regarding the

presence of a large marijuana grow operation, the existence of a basement at the residence,

and the DP&L records which established that the electricity usage at the residence had

recently tripled, the municipal court judge possessed a substantial basis for concluding that

probable cause existed to permit Det. Taylor to scan the interior of the residence with the

thermal imaging device. Accordingly, the Vandalia Municipal court judge did not err when

she issued the first search warrant requested by Det. Taylor.

{¶ 33} We note that section E of the affidavit to the first search warrant specifically

states that in order to use the thermal imager, they “will need to enter the property to get a

reading of heat from the residence.” The affidavit also notes that “there will be no entry

into the physical residence[;] the reading will be done from outside.” Additionally, the first

search warrant provides that “[t]he area the thermal imager is to be used is on the primary

residence, the unattached garage and any outbuilding.” Clearly, the judge who issued the

search warrant gave the police permission to enter the curtilage of the property during the

execution of the search warrant in order to detect any heat emanating from the primary

residence, garage, and any other outbuilding. Otherwise, the search warrant permitting the

thermal scan would have been impracticable. It is significant that neither Det. Taylor nor

any of her team entered any of the buildings named in the search warrant. The house and

garage were merely scanned from the outside with the thermal imager. Accordingly, the

police were lawfully on the curtilage of the property and not trespassing when they smelled

the odor of raw marijuana emanating from a vent near the bottom of the house and received 12

a high reading on the thermal imager.

{¶ 34} Coleman’s third assignment of error is as follows:

{¶ 35} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

DENYING APPELLANT’S MOTION TO SUPPRESS BY FINDING THAT THE

SEARCH WARRANT FOR THE RESIDENCE AT 232 TURNER ROAD WAS

SUPPORTED BY PROBABLE CAUSE WHEN THE AFFIDAVIT PRESENTED

CONTAINED UNLAWFULLY OBTAINED EVIDENCE.”

{¶ 36} In his third assignment, Coleman contends that the trial court erred when it

found that the search warrant for the residence located at 232 Turner Road was supported

by probable cause. Specifically, Coleman asserts that the affidavit for the search warrant

contained unlawfully obtained evidence. Coleman argues that the thermal image results

which uncovered a hot spot in the basement were unlawfully obtained through the use of the

prior tainted warrant. Coleman also asserts again that the officers were trespassing on the

curtilage of the property when they smelled the odor of raw marijuana coming from the

basement.

{¶ 37} We have already determined that the police possessed sufficient probable

cause in order to execute a search warrant to perform a thermal scan of the residence.

Based on the results from the thermal scan, Det. Taylor discovered a heat source emanating

from the basement. In the course of deploying the thermal imager, Det. Taylor and the

other police officers detected the odor of raw marijuana emanating from a vent near the

bottom of the house. In light of these discoveries, Det. Taylor prepared a second affidavit

and obtained a second warrant to search the interior of the primary residence and any 13

outbuildings located at 232 Turner Road. Thereafter, Det. Taylor discovered assorted

contraband and evidence of a marijuana grow operation.

{¶ 38} Upon review, we find that the municipal court judge possessed a substantial

basis upon which to conclude that there was a fair probability that evidence of marijuana

cultivation would be found inside the residence at 232 Turner Road. In addition to the

lawfully discovered evidence discussed in the previous assignments of error, the evidence

before the judge consisted of a positive heat reading from a thermal imager scan of the

residence as well as the smell of raw marijuana emanating from a vent near the bottom of the

primary residence on the subject property. Accordingly, the second affidavit submitted by

Det. Taylor provided the municipal court judge with sufficient probable cause to issue the

subsequent warrant which permitted a search of the interior of the subject residence and

outbuildings located at 232 Turner Road.

{¶ 39} Coleman’s third assignment of error is overruled.

{¶ 40} Coleman’s fourth and final assignment of error is as follows:

{¶ 41} “THE TRIAL COURT ERRED IN NOT SUPPRESSING APPELLANT’S

STATEMENT TO DETECTIVE TAYLOR WHERE APPELLANT WAS NOT ADVISED

OF HIS MIRANDA RIGHTS.”

{¶ 42} In his final assignment, Coleman argues that the trial court erred when it

ruled that inculpatory statements he made to Det. Taylor were admissible because he was not

properly advised of his Miranda rights.

{¶ 43} At the suppression hearing, Det. Taylor testified as follows regarding the

events surrounding Coleman’s unsolicited admission: 14

The State: Okay. After you had completed the search of 232

Turner Road did you have occasion to attempt an interview

of the Defendant, in this case, Marvin Coleman?

Det. Taylor: Yes, sir.

Q: And where did that occur?

A: That occurred [on] the first floor county jail in the large

interview room.

Q: Okay. Were you yourself the one that conducted this

interview?

A: Yes, I was.

Q: Okay. Tell us how it proceeded. Was the Defendant, Marvin

Coleman, in custody at this point?

A: Yes, he was.

Q: Okay. And were you attired as a sheriff’s deputy in a uniform?

A: No, plain clothes. Blue jeans more than likely.

Q: Okay. Did you identify yourself as a sheriff’s office detective

when you made contact with the Defendant?

A: Yes, I did.

Q: All right. Was he in an interview room?

A: Yes.

Q: And was anyone else present other than you and the Defendant

when you began this interview? 15

A: I don’t believe so, no.

Q: How did you begin the interview? Did you introduce yourself?

A: I introduced myself. I obtained a little bit of background information

on him, where he worked, if he was married. I then read him his

Miranda rights for a pre-interview form provided by the sheriff’s

office.

Q: Prior to you interviewing or prior to you reading the Defendant

his Miranda rights, did he make any, excuse me, spontaneous

statements to you before you began reading the rights?

A: Yes, he did.

Q: And what did he tell you?

A: He told me that his wife did not live there and he said that the

marijuana that was found in his home was for personal use, that

they both like to smoke marijuana.

Q: Okay. Was that in response to any questioning that you had

posed to the Defendant?

A: No, sir.

Q: All right. After he makes this statement you then read him his

Miranda rights?

A: I read him each one of his Miranda rights and after I finished

reading the rights I asked him if he understood his rights and he

stated he did, so I had him initial by each of his rights that he 16

understood them. I then read him the waiver of rights. I asked him

if he understood the waiver of rights which he stated he did and he

initialed by that. I had him fill in his years of schooling. And then at

that time he stated he wanted an attorney and I concluded the

interview. (Emphasis added).

{¶ 44} Interrogation includes express questioning as well as “any words or actions

on the part of the police (other than those normally attendant to arrest and custody) that the

police should know are reasonably likely to elicit an incriminating response from the

suspect.” State v. Fair, 2d Dist. Montgomery 24120,

, citing State v.

Strozier,

,

,

(2d Dist.) and

Rhode Island v. Innis,

,

,

(1980). But “[p]olice

officers are not responsible for unforeseeable incriminating responses.” Fair at ¶ 40, citing

State v. Waggoner, 2d Dist. Montgomery No. 21245,

. Statements

made on the subject’s own initiative, in the absence of questions or other conduct by police,

do not constitute “interrogation.” State v. Johnson, 2d Dist. Montgomery No. 20624,

, citing City of Akron v. Milewski,

,

(9th Dist. 1985).

{¶ 45} Upon review, we conclude that the record supports the trial court’s

conclusion that Coleman’s inculpatory admission regarding the contraband discovered in his

residence was clearly voluntary and spontaneous and was not made as a result of any

questioning by Det. Taylor. While it is undisputed that Coleman was in custody at the time

of the interview in the jail, his admissions were not made as a result of custodial 17

interrogation and were made prior to his invocation of his Miranda rights. Accordingly, the

trial court did not err when it found that Coleman’s statement to Det. Taylor was admissible.

{¶ 46} Coleman’s fourth assignment of error is overruled.

{¶ 47} All Coleman’s assignments having been overruled, the judgment of the trial

court is affirmed.

..........

FAIN, J. and HALL, J., concur.

Copies mailed to:

Michele D. Phipps Thomas M. Kollin Hon. Frances E. McGee