[Cite as State v. Eldridge,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 11CA3441 : vs. : Released: August 10, 2012 : PETER D. ELDRIDGE, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. :

APPEARANCES:

Richard W. Campbell, Portsmouth, Ohio, for Appellant.

Mark E. Kuhn, Scioto County Prosecutor, and Pat Apel, Assistant Scioto County Prosecutor, Portsmouth, Ohio, for Appellee.

McFarland, J.:

{¶1} Appellant Peter Eldridge pled no contest to three counts of aggravated

trafficking in drugs with two of the counts alleging he committed the trafficking

within the vicinity of a juvenile.1 Eldridge stipulated there was sufficient evidence

of guilt and the Scioto County Court of Common Pleas found him guilty of all

three counts. Eldridge now appeals the trial court’s denial of his motion to

suppress, arguing 1) the affidavit submitted in support of the request for a search

warrant was inadequate and failed to establish probable cause; and 2) law

1 The trial court and state erroneously denominated these counts as “trafficking in drugs.” Scioto App. No. 11CA3441 2

enforcement officers’ execution of the search warrant was unreasonable because

they violated the knock and announce rule contained within R.C. 2935.12(A).

Having reviewed the record, we find the affidavit was sufficient to establish

probable cause and the officers did not violate R.C. 2935.12(A). Accordingly, we

overrule Eldridge’s two assignments of error and affirm the trial court’s judgment

entry denying his motion to suppress.

FACTS

{¶2} As early as 1995, anonymous callers began informing law enforcement

that Eldridge was selling drugs from his residence. In 2010, Detective John Koch

of the Scioto County Sheriff’s Office conducted a controlled buy from Eldridge

using a confidential informant. Det. Koch gave the informant an audio recording

device and money, which Det. Koch had previously photocopied, and observed the

informant enter Eldridge’s residence. After the transaction was complete, Det.

Koch met the informant at a prearranged location and debriefed him. Det. Koch

recovered a pill containing oxycodone, which the informant stated he obtained

from Eldridge. Det. Koch and the informant conducted three more controlled buys

from Eldridge, each yielding oxycodone, though one of the times the informant

bought the pill from Eldridge’s son.

{¶3} Det. Koch then presented an affidavit containing the anonymous call

history surrounding Eldridge and his residence and details of the four controlled Scioto App. No. 11CA3441 3

buys to a judge at the Scioto County Municipal Court. The judge issued a search

warrant for Eldridge’s residence.

{¶4} Det. Koch and other law enforcement officers then travelled to

Eldridge’s residence. Eldridge’s residence was set back from the road and there

were security cameras. Det. Koch and his team exited the van in a stack formation

with Det. Koch at the front wielding a battering ram and all members wearing

tactical vests emblazoned with “Sheriff’s Office” or “Police Department.”

Immediately upon approaching the door to the residence, which was comprised

almost entirely of transparent glass, Det. Koch saw Eldridge’s son. The son began

shouting to someone inside the residence and Det. Koch and his team announced

their presence by repeatedly shouting, “Sheriff’s office, search warrant!” Det.

Koch also made eye contact with Eldridge’s son during this time, as the team was

only three to four feet from the door.

{¶5} Det. Koch tried to open the door, but it would not open. Even though

Eldridge’s son saw the law enforcement officers approach the door and heard their

announcement, he made no effort to admit them into the residence or to permit

Det. Koch to be able to open the door. Det. Koch told the son to move back as he

prepared to breach the door with the battering ram. While Det. Koch intended to

hit the door frame with the ram, he missed, sending the ram through the glass

portion of the door and lacerating his arm in the process. Scioto App. No. 11CA3441 4

{¶6} Law enforcement entered the residence, secured the persons therein,

and executed the search. They recovered large quantities of controlled substances,

including oxycodone, and over $11,000 in cash.

{¶7} The grand jury returned an indictment against Eldridge for 15 separate

counts and a forfeiture specification. Eldridge filed a motion to suppress, arguing

the affidavit submitted in support of the search warrant was deficient and the

evidence should also be suppressed because law enforcement failed to knock

before breaking his door and entering the residence. The trial court denied

Eldridge’s motion in its entirety.

{¶8} Consequently, Eldridge pled no contest to Counts 1 (aggravated

trafficking in drugs, with an additional aggravating factor of being in the vicinity

of a juvenile), 3 (aggravated trafficking in drugs, with an additional aggravating

factor of being in the vicinity of a juvenile), and 5 (aggravated trafficking in drugs)

and agreed to the forfeiture specification. The trial court found him guilty of all

three counts and sentenced him accordingly. Eldridge now appeals the trial court’s

denial of his motion to suppress.

ASSIGNMENTS OF ERROR

I. “THE TRIAL COURT ERRED IN DENYING THE DEFENDANT-

APPELLANT’S MOTION TO SUPPRESS EVIDENCE OBTAINED

THROUGH EXECUTION OF A WARRANT ISSUED IN VIOLATION Scioto App. No. 11CA3441 5

OF RIGHTS SECURED TO THE DEFENDANT UNDER THE FOURTH

AND FOURTEENTH AMENDMENTS OF THE UNITED STATES

CONSTITUTION, AND SECTION 14, ARTICLE I OF THE OHIO

CONSTITUTION. THE WARRANT WAS BASED ON AN AFFIDAVIT

WHICH FAILED TO ESTABLISH A SUFFICIENT NEXUS BETWEEN

THE SUSPECTED CRIMINAL CONDUCT AND THE PLACE TO BE

SEARCHED.”

II. “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

DEFENDANT-APPELLANT IN FAILING TO FIND THAT THE

MANNER OF EXECUTION OF THE SEARCH WARRANT IN THIS

CASE WAS UNREASONABLE UNDER THE FOURTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND SECTION 14, ARTICLE I OF THE OHIO

CONSTITUTION. AND IN CONSEQUENTLY DENYING THE

DEFENDANT’S MOTION TO SUPPRESS.”

STANDARD OF REVIEW

{¶9} The Fourth Amendment to the United States Constitution, as applied to

the states through the Fourteenth Amendment, provides that “[t]he right of the

people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall Scioto App. No. 11CA3441 6

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.” Article

I, Section 14 of the Ohio Constitution contains a nearly identical provision.

{¶10} Generally, “‘[a]ppellate review of a motion to suppress presents a

mixed question of law and fact. When considering a motion to suppress, the trial

court assumes the role of trier of fact and is therefore in the best position to resolve

factual questions and evaluate the credibility of witnesses.’” State v. Roberts,

,

,

, quoting State v.

Burnside,

,

,

, citing State

v. Mills,

,

(1992). “Accordingly, we defer

to the trial court’s findings of fact if they are supported by competent, credible

evidence.” State v. Westbrook, 4th Dist. No. 09CA3244,

¶16,

citing State v. Landrum,

,

(4th Dist.

2000). “Accepting those facts as true, we must independently determine whether

the trial court reached the correct legal conclusion in analyzing the facts of the

case.” Westbrook at ¶ 16, citing Roberts at ¶ 100, citing Burnside at ¶ 8.

I.

{¶11} In his first assignment of error, Eldridge argues the trial court erred by

not suppressing the evidence because the affidavit Det. Koch submitted to obtain

the search warrant was insufficient to establish probable cause. We disagree. Scioto App. No. 11CA3441 7

A. Legal Analysis

{¶12} “‘A neutral and detached magistrate may issue a search warrant only

upon the finding of probable cause.’” State v. Westbrook, 4th Dist. No.

09CA3277,

, at ¶ 18, quoting State v. Gilbert, 4th Dist. No.

06CA3055,

, citing United States v. Leon,

,

,

(1984) and Crim.R. 41(C). A warrant

shall issue “only on an affidavit or affidavits sworn to before a judge of a court of

record * * * establishing the grounds for issuing the warrant.” Crim.R. 41(C).2

{¶13} When considering the issuance 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.” Illinois v. Gates,

,

,

(1983). Considering the totality of the circumstances, “so long as the

magistrate had a ‘substantial basis for ... conclud[ing]’ that a search would uncover

evidence of wrongdoing, the Fourth Amendment requires no more.”

,

quoting Jones v. United States,

,

,

(1960). Accordingly, “the duty of a reviewing court is simply to ensure that

2 We apply the prior version of Crim.R. 41 that was in effect when the magistrate issued the search warrant. Scioto App. No. 11CA3441 8

the magistrate had a ‘substantial basis for ... conclud[ing]’ that probable cause

existed.” Gates, at 238-239, quoting

. “Neither the trial court nor an

appellate court should substitute its judgment for that of the magistrate.”

Westbrook at ¶ 20, citing State v. George,

,

(1989), at paragraph two of the syllabus (following Gates). “The reviewing court

‘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.’”

“[T]his standard of review is more deferential than

the review we engage in other contexts involving a motion to suppress.” State v.

Goddard, 4th Dist. No. 97CA23,

(Oct. 2, 1998), at fn.2, citing

State v. Klein,

,

(4th Dist. 1991).

{¶14} “To make a valid finding of probable cause, a magistrate must be

informed of: (1) the basis of the informant’s knowledge; and (2) sufficient facts to

establish either the informant’s veracity or the reliability of the informant’s

information. State v. Walker, 4th Dist. No. 08CA3030,

,

citing Aguilar v. Texas,

,

,

(1964).

See, also, Crim.R. 41(C). “‘However, an affidavit lacking in these areas is not

automatically insufficient to procure the issuance of a search warrant.’” Westbrook

at ¶ 24, quoting Goddard. “These areas should instead be viewed as ‘closely

intertwined issues that may usefully illuminate the commonsense, practical Scioto App. No. 11CA3441 9

question whether there is “probable cause” to believe that contraband or evidence

is located in a particular place.’”

“Therefore, a deficiency in one area may be

overcome by ‘other indicia of reliability.’”

{¶15} One such indicium of reliability is corroboration of the informant’s

story. “Corroboration lends credence to the remaining unverified portion of the

informant’s story by demonstrating that the informant has, to the extent tested,

spoken truthfully.” Goddard, citing LaFave, Search and Seizure (1996) 157,

Section 3.3(e). “Furthermore, Gates explicitly reject[ed] the position that

corroboration of innocent activity is not sufficient, noting that seemingly innocent

activity can become suspicious in light of a prior tip.”

{¶16} Here, Det. Koch provided the trial court with testimony of several

controlled buys where Eldridge sold oxycodone to an informant. On each

occasion, between 9:00 a.m. and 9:00 p.m. Det. Koch gave the informant money he

had previously photocopied and observed the informant enter Eldridge’s residence.

The informant had an audio recording device on him while the transactions took

place.3 The informant later met Det. Koch at a predetermined location and gave

Det. Koch a pill that contained oxycodone. The informant stated he had purchased

the pill from “Pete D. Eldridge.” Det. Koch and the informant conducted four

controlled buys within four months, with one of the purchases coming from 3 We note that because Det. Koch took the time to equip his informant with an audio recording device during the controlled buys, it would have bolstered his affidavit if he had revealed the contents of the recordings and they had corroborated the informant’s version of events. Scioto App. No. 11CA3441 10

Eldridge’s son. The last controlled buy occurred the day before the judge issued

the search warrant. The informant later viewed photographs Det. Koch provided to

him and identified Eldridge and his son as the persons who sold him the

oxycodone.

{¶17} Moreover, the affidavit contained numerous anonymous calls made to

law enforcement, alleging Eldridge or persons at his residence were selling drugs.

“An anonymous tip cannot support probable cause * * * without corroboration.

Alabama v. White (1990),

,

,

.

However, the corroboration must demonstrate the assertion of illegality and not

just the identity of the person.” State v. Hunter, 2d Dist. No. 24350, 2011-Ohio-

6321, at ¶ 20, citing Florida v. J.L.,

,

,

(2000).

{¶18} In this case, the four controlled buys corroborated the anonymous tips.

The tips alleged Eldridge was selling drugs from his residence and the informant

corroborated Eldridge was in fact trafficking in controlled substances when he

bought oxycodone from Eldridge on three occasions.

{¶19} We readily acknowledge the controlled buys were not textbook and

there was no real-time surveillance of the transaction. Nor was the informant

searched before or after the buys to insure the oxycodone came from Eldridge.

See, State v. Stephens, 8th Dist. No. 94520,

, at ¶ 4; State v. Scioto App. No. 11CA3441 11

McIntire, 6th Dist. No. H-10-004,

, at ¶ 40; State v. Thompson, 7th

Dist. No.

,

; State v. Holdren, 4th Dist. No.

09CA14,

, at ¶ 4.

{¶20} Yet considering the totality of the circumstances and the deference

afforded to the judicial official who issued the search warrant, we find the affidavit

provided a substantial basis for the judge to determine there was a fair probability

that contraband or evidence of a crime would be found at the residence. While the

informant was not searched before the controlled buys and there is the possibility

he obtained the drugs from someone other than Eldridge and his son, Det. Koch

did not have to establish Eldridge was guilty beyond a reasonable doubt or even

establish a prima facie case when he applied for a search warrant. Det. Koch

needed only establish there was a fair probability he would find contraband or

evidence of a crime if the court permitted him to search Eldridge’s residence and

person, and the affidavit did just that. “[T]he standard for probable cause requires

only a showing that a probability of criminal activity exists, not a prima facie

showing of criminal activity.” State v. Young,

,

(11th Dist. 2001), citing George,

,

and

State v. Taylor,

,

(2d Dist. 1992).

{¶21} Alternatively, had we determined probable cause to issue the search

warrant did not exist, we find law enforcement acted in good faith in executing the Scioto App. No. 11CA3441 12

search warrant. Pursuant to the exclusionary rule, “all evidence obtained by

searches and seizures in violation of the [United States] Constitution is, by that

same authority, inadmissible in a state court.” State v. Wilmoth,

,

(1986), quoting Mapp v. Ohio,

,

,

(1961). “[T]he objective of the exclusionary rule [is]

to deter willful, or at the very least negligent, police conduct which deprive[s] a

defendant of some right.”

. However, “the rule [is] useless when

the police act in good faith.”

referencing United States v. Leon,

,

,

(1984). “In the ordinary case, an officer cannot be

expected to question the magistrate’s probable-cause determination or his

judgment that the form of the warrant is technically sufficient. ‘[O]nce the warrant

issues, there is literally nothing more the policeman can do in seeking to comply

with the law.’ Penalizing the officer for the magistrate’s error, rather than his own,

cannot logically contribute to the deterrence of Fourth Amendment violations.”

(Citation omitted.)

.

{¶22} Under the good faith exception to the exclusionary rule, a court may

not suppress evidence obtained by officers “acting in objectively reasonable, good

faith reliance on a search warrant issued by a detached and neutral magistrate but

ultimately found to be invalid.” Wilmoth at paragraph one of the syllabus, citing

. However, suppression remains appropriate where the officer relied Scioto App. No. 11CA3441 13

on a warrant based on an affidavit “so lacking in indicia of probable cause as to

render official belief in its existence entirely unreasonable.” (Citations omitted.)

George,

,

, quoting

. See, also,

State v. Johnson, 4th Dist. No. 08CA6,

.

{¶23} In this case, the affidavit was not so devoid of indicia of probable

cause so as to render Det. Koch’s reliance upon it unreasonable. An affidavit that

contains conclusory statements and nothing more specific is merely “bare bones”

and insufficient to support to a magistrate’s finding of probable cause. See Gates,

,

. The affidavit here was not merely conclusory and

it was not “bare bones,” nor was it so deficient as to render official belief in

probable cause unreasonable. The affidavit contained numerous tips that Eldridge

was trafficking in controlled substances, which Det. Koch corroborated when he

conducted the controlled buys and Eldridge sold oxycodone to the informant.

{¶24} Accordingly, because Det. Koch and his brethren relied upon the

search warrant in good faith, the good faith exception would apply. Thus, we

overrule Eldridge’s first assignment of error.

II.

{¶25} In his second assignment of error, Eldridge argues law enforcement

not only unreasonably executed the search warrant on his residence in violation of

the “knock and announce” rule, but he also argues the evidence obtained should be Scioto App. No. 11CA3441 14

excluded because of this violation of his rights. Specifically, Eldridge relies upon

R.C. 2935.12(A) and maintains this statute affords more protection than the

common law “knock and announce” rule and its noted exceptions. See Hudson v.

Michigan,

,

,

(2006). However,

because we find law enforcement officers did not violate R.C. 2935.12(A), and

even if they had, exclusion of the recovered evidence is not the proper remedy, we

disagree.

A. Legal Analysis

{¶26} “[W]hether law enforcement officers properly complied with the

knock and announce procedures forms part of the reasonableness inquiry under the

Fourth Amendment.” State v. Gilbert, 4th Dist. No. 06CA3055,

, citing Wilson v. Arkansas,

,

,

(1995).

R.C. 2935.12(A) provides:

[W]hen executing a search warrant, the * * * authorized individual * *

* executing the warrant * * * may break down an outer or inner door

or window of a dwelling house or other building, if, after notice of his

intention to * * * execute the warrant or summons, he is refused

admittance * * *. Scioto App. No. 11CA3441 15

{¶27} Preliminarily, we note the “knock and announce rule,” as codified in

R.C. 2935.12(A) does not actually require law enforcement to knock, or rap on the

door before entering. Rather, the rule, both common law and statutory, merely

requires law enforcement announce its presence and intent, giving the occupant a

chance to comply and admit law enforcement officers before condoning the

breaking of doors or windows. See, Gilbert at ¶23, citing State v. Amundson,

,

(12th Dist. 1996);

. Thus,

the fact that Det. Koch did not actually knock on the door is not dispositive.

{¶28} Here, law enforcement complied with R.C. 2935.12(A) and the

precondition for nonconsensual, forcible entry because the officers announced their

intent to execute the search warrant and were refused admittance. As the lower

court found, law enforcement officers made eye contact with Eldridge’s son

through the door. The son not only saw the officers, but he was also able to hear

them as they announced their presence and intent to execute the search warrant

when they shouted, “Sheriff’s office, search warrant!”

{¶29} After law enforcement officers announced their intent to execute the

search warrant, Eldridge’s son did not admit them into the residence. Officers

were unable to open the glass door and the son did not open it for them, despite

having seen and heard them. The lower court found this to be a refusal of

admittance and we must agree. Scioto App. No. 11CA3441 16

{¶30} Once the officers gave notice of their intent to execute the search

warrant and the son refused admittance, this satisfied the precondition for

nonconsensual, forcible entry and the officers had the right to breach the door with

the battering ram. Accordingly, we find the officers did not violate R.C.

2953.12(A) and their execution of the search warrant was reasonable.

{¶31} Even if we were to find the execution of the search warrant was

unreasonable, we do not believe suppression of the evidence would be the

appropriate remedy. The knock and announce rule serves the interests of

protecting life and limb “because an unannounced entry may provoke violence in

supposed self-defense by the surprised resident”; and protection of property

because it “gives individuals ‘the opportunity to comply with the law and to avoid

the destruction of property occasioned by a forcible entry.’” (Citation omitted.)

Hudson,

,

. The rule also “protects those elements

of privacy and dignity that can be destroyed by a sudden entrance.”

{¶32} “What the knock-and-announce rule has never protected, however, is

one’s interest in preventing the government from seeing or taking evidence

described in a warrant. Since the interests that were violated in this case have

nothing to do with the seizure of the evidence, the exclusionary rule is

inapplicable.” (Emphasis in original).

See, also, Gilbert,

. Scioto App. No. 11CA3441 17

{¶33} Therefore, we find the trial court did not err in refusing to suppress the

evidence based upon law enforcement’s alleged violation of the knock and

announce rule. We overrule Eldridge’s second assignment of error and affirm the

lower court’s judgment.

JUDGMENT AFFIRMED. Scioto App. No. 11CA3441 18

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Harsha, J. and Kline, J: Concur in Judgment and Opinion.

For the Court,

BY: _________________________ Matthew W. McFarland, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk. Scioto App. No. 11CA3441 19